1559

FOURTEENTH AMENDMENT

RIGHTS GUARANTEED

PRIVILEGES AND IMMUNITIES OF CITIZENSHIP,

DUE PROCESS AND EQUAL PROTECTION

CONTENTS

Page

Section 1. Rights Guaranteed ................................................................................................... 1565

Citizens of the United States ............................................................................................ 1565

Privileges and Immunities ................................................................................................. 1568

Due Process of Law ............................................................................................................ 1572

The Development of Substantive Due Process .......................................................... 1572

‘‘Persons’’ Defined ................................................................................................. 1578

Police Power Defined and Limited ...................................................................... 1579

‘‘Liberty’’ ................................................................................................................ 1581

Liberty of Contract ...................................................................................................... 1581

Regulatory Labor Laws Generally ...................................................................... 1581

Laws Regulating Hours of Labor ........................................................................ 1586

Laws Regulating Labor in Mines ........................................................................ 1586

Laws Prohibiting Employment of Children in Hazardous Occupations .......... 1587

Laws Regulating Payment of Wages .................................................................. 1587

Minimum Wage Laws .......................................................................................... 1587

Workers’ Compensation Laws ............................................................................. 1588

Collective Bargaining ........................................................................................... 1591

Regulation of Business Enterprises: Rates, Charges, and Conditions of Service .. 1594

‘‘Business Affected With a Public Interest’’ ....................................................... 1594

Nebbia v. New York .............................................................................................. 1596

Judicial Review of Publicly Determined Rates and Charges ................................... 1597

Development ......................................................................................................... 1597

Limitations on Judicial Review ........................................................................... 1600

The Ben Avon Case .............................................................................................. 1602

History of the Valuation Question ...................................................................... 1603

Regulation of Public Utilities (Other Than Rates) ................................................... 1607

In General ............................................................................................................. 1607

Compulsory Expenditures: Grade Crossings, and the Like .............................. 1608

Compellable Services ........................................................................................... 1610

Safety Regulations Applicable to Railroads ....................................................... 1612

Statutory Liabilities and Penalties Applicable to Railroads ............................ 1613

Regulation of Corporations, Business, Professions, and Trades .............................. 1614

Corporations ......................................................................................................... 1614

Business in General ............................................................................................. 1615

Laws Prohibiting Trusts, Discrimination, Restraint of Trade ......................... 1615

Laws Preventing Fraud in Sale of Goods and Securities ................................. 1616

Banking, Wage Assignments and Garnishment ................................................ 1618

Insurance .............................................................................................................. 1619

Miscellaneous Businesses and Professions ........................................................ 1622

Protection of State Resources ..................................................................................... 1624
1560 AMENDMENT 14—RIGHTS GUARANTEED

Section 1. Rights Guaranteed—Continued

Due Process of Law—Continued

Oil and Gas ........................................................................................................... 1624

Protection of Property and Agricultural Crops .................................................. 1625

Water ..................................................................................................................... 1626

Fish and Game ..................................................................................................... 1627

Ownership of Real Property: Limitations, Rights .................................................... 1628

Zoning and Similar Actions ................................................................................. 1628

Estates, Succession, Abandoned Property .......................................................... 1630

Health, Safety, and Morals ......................................................................................... 1632

Safety Regulations ............................................................................................... 1632

Sanitation ............................................................................................................. 1633

Food, Drugs, Milk ................................................................................................ 1633

Intoxicating Liquor .............................................................................................. 1634

Regulation of Motor Vehicles and Carriers ........................................................ 1634

Protecting Morality .............................................................................................. 1636

Vested Rights, Remedial Rights, Political Candidacy .............................................. 1636

Control of Local Units of Government ....................................................................... 1637

Taxing Power ............................................................................................................... 1637

Generally ............................................................................................................... 1637

Public Purpose ...................................................................................................... 1638

Other Considerations Affecting Validity: Excessive Burden; Ratio of

Amount Of Benefit Received ............................................................................ 1638

Estate, Gift and Inheritance Taxes .................................................................... 1639

Income Taxes ........................................................................................................ 1640

Franchise Taxes ................................................................................................... 1640

Severance Taxes ................................................................................................... 1640

Real Property Taxes ............................................................................................. 1641

Jurisdiction to Tax ...................................................................................................... 1642

Sales/Use Taxes .................................................................................................... 1643

Land ...................................................................................................................... 1643

Tangible Personalty ............................................................................................. 1643

Intangible Personalty ........................................................................................... 1646

Transfer (Inheritance, Estate, Gift) Taxes ......................................................... 1650

Corporate Privilege Taxes ................................................................................... 1654

Individual Income Taxes ..................................................................................... 1655

Corporate Income Taxes: Foreign Corporations ................................................ 1656

Insurance Company Taxes .................................................................................. 1657

Procedure in Taxation ................................................................................................. 1659

Generally ............................................................................................................... 1659

Notice and Hearing in Relation to Taxes ........................................................... 1659

Notice and Hearing in Relation to Assessments ............................................... 1660

Collection of Taxes ............................................................................................... 1662

Sufficiency and Manner of Giving Notice ........................................................... 1664

Sufficiency of Remedy .......................................................................................... 1665

Laches ................................................................................................................... 1665

Eminent Domain ......................................................................................................... 1666

Substantive Due Process and Noneconomic Liberty ................................................ 1666

Abortion ................................................................................................................ 1669

Privacy: Its Constitutional Dimensions .............................................................. 1679

Family Relationships ........................................................................................... 1688

Liberty Interests of Retarded and Mentally Ill: Commitment and Treatment ................................................................................................................... 1690
AMENDMENT 14—RIGHTS GUARANTEED 1561

Section 1. Rights Guaranteed—Continued

Due Process of Law—Continued

‘‘Right to Die’’ ....................................................................................................... 1692

Procedural Due Process: Civil ................................................................................................... 1693

Some General Criteria ................................................................................................ 1693

Ancient Use and Uniformity ............................................................................... 1693

Equality ................................................................................................................. 1694

Due Process, Judicial Process, and Separation of Powers ................................ 1694

Power of the States to Regulate Procedure ............................................................... 1695

Generally ............................................................................................................... 1695

Commencement of Actions .................................................................................. 1696

Pleas in Abatement .............................................................................................. 1696

Defenses ................................................................................................................ 1697

Amendments and Continuances ......................................................................... 1697

Costs, Damages, and Penalties ........................................................................... 1698

Statutes of Limitation .......................................................................................... 1699

Evidence and Presumptions ................................................................................ 1701

Jury Trials ............................................................................................................ 1704

Appeals .................................................................................................................. 1704

Jurisdiction .................................................................................................................. 1705

Generally ............................................................................................................... 1705

In Personam Proceedings Against Individuals .................................................. 1707

Suability of Foreign Corporations ....................................................................... 1710

Actions in Rem: Proceedings Against Land ....................................................... 1716

Actions in Rem: Attachment Proceedings .......................................................... 1718

Actions in Rem: Estates, Trusts, Corporations .................................................. 1720

Notice: Service of Process .................................................................................... 1722

The Procedure Which Is Due Process ........................................................................ 1723

The Interests Protected: Entitlements and Positivist Recognition .................. 1723

Proceedings in Which Procedural Due Process Must Be Observed ................. 1732

When Is Process Due ........................................................................................... 1735

The Requirements of Due Process ...................................................................... 1740

Procedural Due Process: Criminal ........................................................................................... 1745

Generally ...................................................................................................................... 1745

The Elements of Due Process ..................................................................................... 1747

Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine ..................... 1747

Other Aspects of Statutory Notice ...................................................................... 1749

Entrapment .......................................................................................................... 1750

Criminal Identification Process ........................................................................... 1752

Initiation of the Prosecution ................................................................................ 1753

Fair Trial .............................................................................................................. 1753

Guilty Pleas .......................................................................................................... 1757

Prosecutorial Misconduct ..................................................................................... 1758

Proof, Burden of Proof, and Presumptions ......................................................... 1761

Sentencing ............................................................................................................ 1765

The Problem of the Incompetent or Insane Defendant or Convict .................. 1769

Corrective Process: Appeals and Other Remedies ............................................. 1770

Rights of Prisoners ............................................................................................... 1772

Probation and Parole ........................................................................................... 1776

The Problem of the Juvenile Offender ............................................................... 1780

The Problem of Civil Commitment ..................................................................... 1783

Equal Protection of the Laws ................................................................................................... 1786

Scope and Application ........................................................................................................ 1786
1562 AMENDMENT 14—RIGHTS GUARANTEED

Equal Protection of the Laws—Continued

Scope and Application—Continued

State Action ................................................................................................................. 1786

‘‘Persons’’ ...................................................................................................................... 1802

‘‘Within Its Jurisdiction’’ ............................................................................................. 1803

Equal Protection: Judging Classifications by Law .......................................................... 1804

Traditional Standard: Restrained Review ................................................................. 1805

The New Standards: Active Review ........................................................................... 1809

Testing Facially Neutral Classifications Which Impact on Minorities .......................... 1815

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

Powers ..................................................................................................................................... 1821

Taxation .............................................................................................................................. 1821

Classification for Purpose of Taxation ....................................................................... 1821

Foreign Corporations and Nonresidents .................................................................... 1824

Income Taxes ............................................................................................................... 1825

Inheritance Taxes ........................................................................................................ 1826

Motor Vehicle Taxes .................................................................................................... 1826

Property Taxes ............................................................................................................. 1827

Special Assessment ..................................................................................................... 1828

Police Power Regulation .................................................................................................... 1829

Classification ............................................................................................................... 1829

Other Business and Employment Relations ..................................................................... 1834

Labor Relations ........................................................................................................... 1834

Monopolies and Unfair Trade Practices .................................................................... 1835

Administrative Discretion ........................................................................................... 1835

Social Welfare .............................................................................................................. 1836

Punishment of Crime .................................................................................................. 1838

Equal Protection and Race ........................................................................................................ 1839

Overview .............................................................................................................................. 1839

Education ............................................................................................................................ 1840

Development and Application of ‘‘Separate But Equal’’ ........................................... 1840

Brown v. Board of Education ..................................................................................... 1842

Brown’s Aftermath ...................................................................................................... 1843

Implementation of School Desegregation .................................................................. 1845

Northern Schools: Inter- and Intradistrict Desegregation ....................................... 1847

Efforts to Curb Busing and Other Desegregation Remedies ................................... 1852

Termination of Court Supervision ............................................................................. 1853

Juries ................................................................................................................................... 1854

Capital Punishment ........................................................................................................... 1857

Housing ............................................................................................................................... 1858

Other Areas of Discrimination .......................................................................................... 1859

Transportation ............................................................................................................. 1859

Public Facilities ........................................................................................................... 1859

Marriage ....................................................................................................................... 1860

Judicial System ........................................................................................................... 1860

Public Designation ...................................................................................................... 1861

Public Accommodations .............................................................................................. 1861

Elections ....................................................................................................................... 1861

Permissible Remedial Utilization of Racial Classifications ............................................ 1861

The New Equal Protection ........................................................................................................ 1869

Classifications Meriting Close Scrutiny ............................................................................ 1869

Alienage and Nationality ............................................................................................ 1869

Sex ................................................................................................................................ 1875
AMENDMENT 14—RIGHTS GUARANTEED 1563

The New Equal Protection—Continued

Classifications Meriting Close Scrutiny—Continued

Illegitimacy .................................................................................................................. 1886

Fundamental Interests: The Political Process ................................................................. 1892

Voter Qualifications .................................................................................................... 1893

Access to the Ballot ..................................................................................................... 1897

Apportionment and Districting .................................................................................. 1902

Weighing of Votes ........................................................................................................ 1911

The Right to Travel ............................................................................................................ 1911

Durational Residency Requirements ......................................................................... 1911

Marriage and Familial Relations ...................................................................................... 1914

Poverty and Fundamental Interests: The Intersection of Due Process and Equal Protection .............................................................................................................................. 1916

Generally ...................................................................................................................... 1916

Criminal Procedure ..................................................................................................... 1918

The Criminal Sentence ............................................................................................... 1920

Voting ........................................................................................................................... 1921

Access to Courts .......................................................................................................... 1922

Educational Opportunity ............................................................................................ 1923

Abortion ........................................................................................................................ 1925

Section 2. Apportionment of Representation ........................................................................... 1926

Sections 3 and 4. Disqualification and Public Debt ................................................................ 1928

Section 5. Enforcement .............................................................................................................. 1928

Generally ............................................................................................................................. 1928

State Action ......................................................................................................................... 1929

Congressional Definition of Fourteenth Amendment Rights .......................................... 1933

1565

1Scott v. Sandford, 60 U.S. (19 How.) 393, 404–06, 417–18, 419–20 (1857).

2The controversy, political as well as constitutional, which this case stirred and

still stirs, is exemplified and analyzed in the material collected in S. KUTLER, THE

DRED SCOTT DECISION: LAW OR POLITICS? (1967). 3 ‘‘That all persons born in the United States and not subject to any foreign

power, excluding Indians not taxed, are hereby declared to be citizens of the United

States; and such citizens, of every race and color, without regard to any previous

RIGHTS GUARANTEED

PRIVILEGES AND IMMUNITIES OF CITIZENSHIP, DUE

PROCESS AND EQUAL PROTECTION

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.

CITIZENS OF THE UNITED STATES

In the Dred Scott Case, 1 Chief Justice Taney for the Court

ruled that United States citizenship was enjoyed by two classes of

individuals: (1) white persons born in the United States as descendents of ‘‘persons, who were at the time of the adoption of the

Constitution recognized as citizens in the several States and [who]

became also citizens of this new political body,’’ the United States

of America, and (2) those who, having been ‘‘born outside the dominions of the United States,’’ had migrated thereto and been naturalized therein. The States were competent, he continued, to confer state citizenship upon anyone in their midst, but they could not

make the recipient of such status a citizen of the United States.

The ‘‘Negro,’’ or ‘‘African race,’’ according to the Chief Justice, was

ineligible to attain United States citizenship, either from a State or

by virtue of birth in the United States, even as a free man descended from a Negro residing as a free man in one of the States

at the date of ratification of the Constitution. 2 Congress, first in

§ 1 of the Civil Rights Act of 1866 3 and then in the first sentence
1566 AMENDMENT 14—RIGHTS GUARANTEED

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).

6Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 74 (1873).

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

8 Id. at 682.

9 Id. at 680–82; Elk v. Wilkins, 112 U.S. 94, 99 (1884).

10 United States v. Gordon, 25 Fed. Cas. 1364 (C.C.S.D.N.Y. 1861) (No. 15,231);

In re Look Tin Sing, 21 F. 905 (C.C.Cal. 1884); Lam Mow v. Nagle, 24 F.2d 316

(9th Cir. 1928). 11 387 U.S. 253 (1967). Though the Court upheld the involuntary expatriation

of a woman citizen of the United States during her marriage to a foreign citizen

in Mackenzie v. Hare, 239 U.S. 299 (1915), the subject first received extended judicial treatment in Perez v. Brownell, 356 U.S. 44 (1958), in which by a five-to-four

decision the Court upheld a statute denaturalizing a native-born citizen for having

voted in a foreign election. For the Court, Justice Frankfurter reasoned that Congress’ power to regulate foreign affairs carried with it the authority to sever the relationship of this country with one of its citizens to avoid national implication in

of § 1 of the Fourteenth Amendment, 4 set aside the Dred Scott

holding in a sentence ‘‘declaratory of existing rights, and affirmative of existing law. . . .’’ 5

While clearly establishing a national rule on national citizenship and settling a controversy of long standing with regard to the

derivation of national citizenship, the Fourteenth Amendment did

not obliterate the distinction between national and state citizenship, but rather preserved it. 6 The Court has accorded the first

sentence of § 1 a construction in accordance with the congressional

intentions, holding that a child born in the United States of Chinese parents who themselves were ineligible to be naturalized is

nevertheless a citizen of the United States entitled to all the rights

and privileges of citizenship. 7 Congress’ intent in including the

qualifying phrase ‘‘and subject to the jurisdiction thereof,’’ was apparently to exclude from the reach of the language children born

of diplomatic representatives of a foreign state and children born

of alien enemies in hostile occupation, both recognized exceptions

to the common-law rule of acquired citizenship by birth, 8 as well

as children of members of Indian tribes subject to tribal laws. 9 The

lower courts have generally held that the citizenship of the parents

determines the citizenship of children born on vessels in United

States territorial waters or on the high seas. 10

In Afroyim v. Rusk, 11 a divided Court extended the force of

this first sentence beyond prior holdings, ruling that it withdrew
AMENDMENT 14—RIGHTS GUARANTEED 1567

acts of that citizen which might embarrass relations with a foreign nation. Id. at

60–62. Three of the dissenters denied that Congress had any power to denaturalize.

See discussion supra pp. 272–76. In the years before Afroyim, a series of decisions

had curbed congressional power. 12 Afroyim v. Rusk, 387 U.S. 253, 262–63 (1967). Four dissenters, Justices Harlan, Clark, Stewart, and White, controverted the Court’s reliance on the history and

meaning of the Fourteenth Amendment and reasserted Justice Frankfurter’s previous reasoning in Perez. Id. at 268. 13 Rogers v. Bellei, 401 U.S. 815 (1971). This, too, was a five-to-four decision,

Justices Blackmun, Harlan, Stewart, and White, and Chief Justice Burger in the

majority, and Justices Black, Douglas, Brennan, and Marshall dissenting. 14 Insurance Co. v. New Orleans, 13 Fed. Cas. 67 (C.C.D.La. 1870). Not being

citizens of the United States, corporations accordingly have been declared unable ‘‘to

claim the protection of that clause of the Fourteenth Amendment which secures the

privileges and immunities of citizens of the United States against abridgment or impairment by the law of a State.’’ Orient Ins. Co. v. Daggs, 172 U.S. 557, 561 (1869).

This conclusion was in harmony with the earlier holding in Paul v. Virginia, 75 U.S.

(8 Wall.) 168 (1869), to the effect that corporations were not within the scope of the

privileges and immunities clause of state citizenship set out in Article IV, § 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).

from the Government of the United States the power to expatriate

United States citizens against their will for any reason. ‘‘[T]he

Amendment can most reasonably be read as defining a citizenship

which a citizen keeps unless he voluntarily relinquishes it. Once

acquired, this Fourteenth Amendment citizenship was not to be

shifted, canceled, or diluted at the will of the Federal Government,

the States, or any other government unit. It is true that the chief

interest of the people in giving permanence and security to citizenship in the Fourteenth Amendment was the desire to protect Negroes. . . . This undeniable purpose of the Fourteenth Amendment

to make citizenship of Negroes permanent and secure would be

frustrated by holding that the Government can rob a citizen of his

citizenship without his consent by simply proceeding to act under

an implied general power to regulate foreign affairs or some other

power generally granted.’’ 12 In a subsequent decision, however, the

Court held that persons who were statutorily naturalized by being

born abroad of at least one American parent could not claim the

protection of the first sentence of § 1 and that Congress could therefore impose a reasonable and non-arbitrary condition subsequent

upon their continued retention of United States citizenship. 13 Between these two decisions there is a tension which should call forth

further litigation efforts to explore the meaning of the citizenship

sentence of the Fourteenth Amendment.

Citizens of the United States within the meaning of this

Amendment must be natural and not artificial persons; a corporate

body is not a citizen of the United States. 14
1568 AMENDMENT 14—RIGHTS GUARANTEED

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

PRIVILEGES AND IMMUNITIES

Unique among constitutional provisions, the privileges and immunities clause of the Fourteenth Amendment enjoys the distinction of having been rendered a ‘‘practical nullity’’ by a single decision of the Supreme Court issued within five years after its ratification. In the Slaughter-House Cases, 15 a bare majority of the

Court frustrated the aims of the most aggressive sponsors of this

clause, to whom was attributed an intention to centralize ‘‘in the

hands of the Federal Government large powers hitherto exercised

by the States’’ with a view to enabling business to develop

unimpeded by state interference. This expansive alteration of the

federal system was to have been achieved by converting the rights

of the citizens of each State as of the date of the adoption of the

Fourteenth Amendment into privileges and immunities of United

States citizenship and thereafter perpetuating this newly defined

status quo through judicial condemnation of any state law challenged as ‘‘abridging’’ any one of the latter privileges. To have fostered such intentions, the Court declared, would have been ‘‘to

transfer the security and protection of all the civil rights . . . to the

Federal Government, . . . to bring within the power of Congress

the entire domain of civil rights heretofore belonging exclusively to

the States,’’ and to ‘‘constitute this court a perpetual censor upon

all legislation of the States, on the civil rights of their own citizens,

with authority to nullify such as it did not approve as consistent

with those rights, as they existed at the time of the adoption of this

amendment. . . . [The effect of] so great a departure from the

structure and spirit of our institutions . . . is to fetter and degrade

the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to

them of the most ordinary and fundamental character. . . . We are

convinced that no such results were intended by the Congress . . .

, nor by the legislatures . . . which ratified’’ this amendment, and

that the sole ‘‘pervading purpose’’ of this and the other War

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

Conformably to these conclusions, the Court advised the New

Orleans butchers that the Louisiana statute, conferring on a single

corporation a monopoly of the business of slaughtering cattle, abrogated no rights possessed by them as United States citizens; insofar as that law interfered with their claimed privilege of pursuing

the lawful calling of butchering animals, the privilege thus terminated was merely one of ‘‘those which belonged to the citizens of

the States as such.’’ Privileges and immunities of state citizenship
AMENDMENT 14—RIGHTS GUARANTEED 1569

16 Id. at 78–79. 17 Id. at 79. 18 211 U.S. 78, 97 (1908). 19 Citing Crandall v. Nevada, 73 U.S. (65 Wall.) 35 (1868). It was observed in

United States v. Wheeler, 254 U.S. 281, 299 (1920), that the statute at issue in

Crandall was actually held to burden directly the performance by the United States

of its governmental functions. Cf. Passenger Cases, 48 U.S. (7 How.) 282, 491–92

(1849) (Chief Justice Taney dissenting). Four concurring Justices in Edwards v.

California, 314 U.S. 160, 177, 181 (1941), would have grounded a right of interstate

travel on the privileges and immunities clause. More recently, the Court declined

to ascribe a source but was content to assert the right to be protected. United States

v. Guest, 383 U.S. 745, 758 (1966); Shapiro v. Thompson, 394 U.S. 618, 629–31

(1969). Three Justices ascribed the source to this clause in Oregon v. Mitchell, 400

U.S. 112, 285–87 (1970) (Justices Stewart and Blackmun and Chief Justice Burger,

concurring in part and dissenting in part). 20 Citing United States v. Cruikshank, 92 U.S. 542 (1876). 21 Citing Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley v. Sinkler, 179 U.S.

58 (1900). Note Justice Douglas’ reliance on this clause in Oregon v. Mitchell, 400

U.S. 112, 149 (1970) (concurring in part and dissenting in part).

had been ‘‘left to the state governments for security and protection’’

and had not been placed by this clause ‘‘under the special care of

the Federal Government.’’ The only privileges which the Fourteenth Amendment protected against state encroachment were declared to be those ‘‘which owe their existence to the Federal Government, its National character, its Constitution, or its laws.’’ 16

These privileges, however, had been available to United States citizens and protected from state interference by operation of federal

supremacy even prior to the adoption of the Fourteenth Amendment. The Slaughter-House Cases, therefore, reduced the privileges

and immunities clause to a superfluous reiteration of a prohibition

already operative against the states.

Although the Court has expressed a reluctance to attempt a

definitive enumeration of those privileges and immunities of United States citizens which are protected against state encroachment,

it nevertheless felt obliged in the Slaughter-House Cases ‘‘to suggest some which owe their existence to the Federal Government, its

National character, its Constitution, or its laws.’’ 17 Among those

which it then identified were the right of access to the seat of Government and to the seaports, subtreasuries, land officers, and

courts of justice in the several States, the right to demand protection of the Federal Government on the high seas or abroad, the

right of assembly, the privilege of habeas corpus, the right to use

the navigable waters of the United States, and rights secured by

treaty. In Twining v. New Jersey, 18 the Court recognized ‘‘among

the rights and privileges’’ of national citizenship the right to pass

freely from State to State, 19 the right to petition Congress for a redress of grievances, 20 the right to vote for national officers, 21 the
1570 AMENDMENT 14—RIGHTS GUARANTEED

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). 26 296 U.S. 404 (1935). 27Madden v. Kentucky, 309 U.S. 83, 93 (1940). 28 307 U.S. 496, 510–18 (1939) (Justices Roberts and Black; Chief Justice

Hughes may or may not have concurred on this point. Id. at 532). Justices Stone

and Reed preferred to base the decision on the due process clause. Id. at 518. 29 314 U.S. 160, 177–83 (1941). 30See also Oregon v. Mitchell, 400 U.S. 112, 149 (1970) (Justice Douglas); id.

at 285–87 (Justices Stewart and Blackmun and Chief Justice Burger). 31 332 U.S. 633, 640 (1948).

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. Colgate

v. Harvey, 26 which was overruled five years later, 27 represented

the first attempt by the Court since adoption of the Fourteenth

Amendment to convert the privileges and immunities clause into a

source of protection of other than those ‘‘interests growing out of

the relationship between the citizen and the national government.’’

Here, the Court declared that the right of a citizen resident in one

State to contract in another, to transact any lawful business, or to

make a loan of money, in any State other than that in which the

citizen resides was a privilege of national citizenship which was

abridged by a state income tax law excluding from taxable income

interest received on money loaned within the State. In Hague v.

CIO, 28 two and perhaps three justices thought that freedom to use

municipal streets and parks for the dissemination of information

concerning provisions of a federal statute and to assemble peacefully therein for discussion of the advantages and opportunities offered by such act was a privilege and immunity of a United States

citizen, and in Edwards v. California 29 four Justices were prepared

to rely on the clause. 30 In Oyama v. California, 31 in a single sentence the Court agreed with the contention of a native-born youth

that a state Alien Land Law, applied to work a forfeiture of property purchased in his name with funds advanced by his parent, a

Japanese alien ineligible for citizenship and precluded from owning

land, deprived him ‘‘of his privileges as an American citizen.’’ The

right to acquire and retain property had previously not been set
AMENDMENT 14—RIGHTS GUARANTEED 1571

32 Civil Rights Act of 1866, ch. 31, 14 Stat. 27, now 42 U.S.C. § 1982, as amended. 33 E.g., Holden v. Hardy, 169 U.S. 366, 380 (1898) (statute limiting hours of

labor in mines); Williams v. Fears, 179 U.S. 270, 274 (1900) (statute taxing the business of hiring persons to labor outside the State); Wilmington Mining Co. v. Fulton,

205 U.S. 60, 73 (1907) (statute requiring employment of only licensed mine managers and examiners and imposing liability on the mine owner for failure to furnish

a reasonably safe place for workmen); Heim v. McCall, 239 U.S. 175 (1915); Crane

v. New York, 239 U.S. 195 (1915) (statute restricting employment on state public

works to citizens of the United States, with a preference to citizens of the State);

Missouri Pacific Ry. v. Castle, 224 U.S. 541 (1912) (statute making railroads liable

to employees for injuries caused by negligence of fellow servants and abolishing the

defense of contributory negligence); Western Union Tel. Co. v. Milling Co., 218 U.S.

406 (1910) (statute prohibiting a stipulation against liability for negligence in delivery of interstate telegraph messages); Bradwell v. Illinois, 83 U.S. (16 Wall.) 130,

139 (1873); In re Lockwood, 154 U.S. 116 (1894) (refusal of state court to license

a woman to practice law); Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879) (law taxing a debt owed a resident citizen by a resident of another State and secured by

mortgage of land in the debtor’s State); Bartemeyer v. Iowa, 85 U.S. (18 Wall.) 129

(1874); Mugler v. Kansas, 123 U.S. 623 (1887); Crowley v. Christensen, 137 U.S. 86,

91 (1890); Giozza v. Tiernan, 148 U.S. 657 (1893) (statutes regulating the manufacture and sale of intoxicating liquors); In re Kemmler, 136 U.S. 436 (1890) (statute

regulating the method of capital punishment); Minor v. Happersett, 88 U.S. (21

Wall.) 162 (1875) (statute regulating the franchise to male citizens); Pope v. Williams, 193 U.S. 621 (1904) (statute requiring persons coming into a State to make

a declaration of intention to become citizens and residents thereof before being permitted to register as voters); Ferry v. Spokane, P. & S. Ry., 258 U.S. 314 (1922)

(statute restricting dower, in case wife at time of husband’s death is a nonresident,

to lands of which he died seized); Walker v. Sauvinet, 92 U.S. 90 (1876) (statute

restricting right to jury trial in civil suits at common law); Presser v. Illinois, 116

U.S. 252, 267 (1886) (statute restricting drilling or parading in any city by any body

of men without license of the Governor); Maxwell v. Dow, 176 U.S. 581, 596, 597–

98 (1900) (provision for prosecution upon information, and for a jury (except in capital cases) of eight persons); New York ex rel. Bryant v. Zimmerman, 278 U.S. 63,

71 (1928) (statute penalizing the becoming or remaining a member of any oathbound

association (other than benevolent orders, and the like) with knowledge that the association has failed to file its constitution and membership lists); Palko v. Connecticut, 302 U.S. 319 (1937) (statute allowing a State to appeal in criminal cases for

errors of law and to retry the accused); Breedlove v. Suttles, 302 U.S. 277 (1937)

(statute making the payment of poll taxes a prerequisite to the right to vote); Madden v. Kentucky, 309 U.S. 83, 92–93 (1940), (overruling Colgate v. Harvey, 296 U.S.

404, 430 (1935)) (statute whereby deposits in banks outside the State are taxed at

50¢ 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

forth in any of the enumerations as one of the privileges protected

against state abridgment, although a federal statute enacted prior

to the proposal and ratification of the Fourteenth Amendment did

confer on all citizens the same rights to purchase and hold real

property as white citizens enjoyed. 32

In other respects, however, claims based on this clause have

been rejected. 33
1572 AMENDMENT 14—RIGHTS GUARANTEED

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). 34 Hibben v. Smith, 191 U.S. 310, 325 (1903). 35 Carroll v. Greenwich Ins. Co., 199 U.S. 401, 410 (1905). See also French v.

Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901). 36Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857), is the exception. 37 83 U.S. (16 Wall.) 36, 80–81 (1873). 38 94 U.S. 113, 134 (1877).

DUE PROCESS OF LAW

The Development of Substantive Due Process

Although many years after ratification the Court ventured the

not very informative observation that the Fourteenth Amendment

‘‘operates to extend . . . the same protection against arbitrary state

legislation, affecting life, liberty and property, as is offered by the

Fifth Amendment,’’ 34 and that ‘‘ordinarily if an act of Congress is

valid under the Fifth Amendment it would be hard to say that a

state law in like terms was void under the Fourteenth,’’ 35 the significance of the due process clause as a restraint on state action appears to have been grossly underestimated by litigants no less than

by the Court in the years immediately following its adoption. From

the outset of our constitutional history due process of law as it occurs in the Fifth Amendment had been recognized as a restraint

upon government, but, with the conspicuous exception of the Dred

Scott decision, 36 only in the narrower sense that a legislature must

provide ‘‘due process for the enforcement of law.’’

Thus, in the Slaughter-House Cases, 37 in which the clause was

invoked by a group of butchers challenging the validity of a Louisiana statute which conferred upon one corporation the exclusive

privilege of butchering cattle in New Orleans, the Court declared

that the prohibition against a deprivation of property ‘‘has been in

the Constitution since the adoption of the Fifth Amendment, as a

restraint upon the Federal power. It is also to be found in some

forms of expression in the constitution of nearly all the States, as

a restraint upon the power of the States. . . . We are not without

judicial interpretation, therefore, both State and National, of the

meaning of this clause. And it is sufficient to say that under no

construction of that provision that we have ever seen, or any that

we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of

that provision.’’ Four years later, in Munn v. Illinois, 38 the Court

again refused to interpret the due process clause as invalidating
AMENDMENT 14—RIGHTS GUARANTEED 1573

39 96 U.S. 97, 103–04 (1878).

state legislation regulating the rates charged for the transportation

and warehousing of grain. Rejecting contentions that such legislation effected an unconstitutional deprivation of property by preventing the owner from earning a reasonable compensation for its

use and by transferring to the public an interest in a private enterprise, Chief Justice Waite emphasized that ‘‘the great office of statutes is to remedy defects in the common law as they are developed.

. . . We know that this power [of rate regulation] may be abused;

but that is no argument against its existence. For protection

against abuses by legislatures the people must resort to the polls,

not to the courts.’’

Deploring such attempts, nullified consistently in the preceding

cases, to convert the due process clause into a substantive restraint

on the powers of the States, Justice Miller in Davidson v. New Orleans, 39 obliquely counseled against a departure from the conventional application of the clause, albeit he acknowledged the difficulty of arriving at a precise, all-inclusive definition thereof. ‘‘It

is not a little remarkable,’’ he observed, ‘‘that while this provision

has been in the Constitution of the United States, as a restraint

upon the authority of the Federal government, for nearly a century,

and while, during all that time, the manner in which the powers

of that government have been exercised has been watched with

jealousy, and subjected to the most rigid criticism in all its

branches, this special limitation upon its powers has rarely been

invoked in the judicial forum or the more enlarged theatre of public

discussion. But while it has been part of the Constitution, as a restraint upon the power of the States, only a very few years, the

docket of this court is crowded with cases in which we are asked

to hold that state courts and state legislatures have deprived their

own citizens of life, liberty, or property without due process of law.

There is here abundant evidence that there exists some strange

misconception of the scope of this provision as found in the Fourteenth Amendment. In fact, it would seem, from the character of

many of the cases before us, and the arguments made in them, that

the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of

every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which

such a decision may be founded. If, therefore, it were possible to

define what it is for a State to deprive a person of life, liberty, or

property without due process of law, in terms which would cover

every exercise of power thus forbidden to the State, and exclude
1574 AMENDMENT 14—RIGHTS GUARANTEED

40 110 U.S. 516, 528, 532, 536 (1884).

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 the ascertaining of the intent

and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion,

as the cases presented for decision shall require. . . .’’

A bare half-dozen years later, in again reaching a result in

harmony with past precedents, the Justices gave fair warning of

the imminence of a modification of their views. After noting that

the due process clause, by reason of its operation upon ‘‘all the

powers of government, legislative as well as executive and judicial,’’

could not be appraised solely in terms of the ‘‘sanction of settled

usage,’’ Justice Mathews, speaking for the Court in Hurtado v.

California, 40 declared that ‘‘[a]rbitrary power, enforcing its edicts

to the injury of the persons and property of its subjects, is not law,

whether manifested as the decree of a personal monarch or of an

impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both state and national, are essential to the preservation of public and private

rights, notwithstanding the representative character of our political

institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights

of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding

the force of the government.’’ Thus were the States put on notice

that every species of state legislation, whether dealing with procedural or substantive rights, was subject to the scrutiny of the Court

when the question of its essential justice was raised.

What induced the Court to dismiss its fears of upsetting the

balance in the distribution of powers under the federal system and

to enlarge its own supervisory powers over state legislation was the

increasing number of cases seeking protection of property rights

against the remedial social legislation States were enacting in the

wake of industrial expansion. At the same time, the added emphasis on the due process clause afforded the Court an opportunity to

compensate for its earlier virtual nullification of the privileges and

immunities clause of the Amendment. So far as such modification

of its position needed to be justified in legal terms, theories concerning the relation of government to private rights were available
AMENDMENT 14—RIGHTS GUARANTEED 1575

41 94 U.S. 113, 141–48 (1877). 42 123 U.S. 623, 661 (1887). 43 83 U.S. (16 Wall.) 36, 113–14, 116, 122 (1873). 44Loan Association v. Topeka, 87 U.S. (20 Wall.) 655, 662 (1875). ‘‘There are

. . . rights in every free government beyond the control of the State. . . . There are

limitations on [governmental power] which grow out of the essential nature of all

free governments. Implied reservations of individual rights, without which the social

compact could not exist. . . .’’ 45 ‘‘Rights to life, liberty, and the pursuit of happiness are equivalent to the

rights of life, liberty, and property. These are fundamental rights which can only

be taken away by due process of law, and which can only be interfered with, or the

enjoyment of which can only be modified, by lawful regulations necessary or proper

for the mutual good of all. . . . This right to choose one’s calling is an essential part

of that liberty which it is the object of government to protect; and a calling, when

chosen, is a man’s property right. . . . A law which prohibits a large class of citizens

from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law.’’ Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 116, 122 (1873) (Justice

Bradley dissenting).

to demonstrate the impropriety of leaving to the state legislatures

the same ample range of police power they had enjoyed prior to the

Civil War. Preliminary to this consummation, however, the Slaughter-House Cases and Munn v. Illinois had to be overruled at least

in part, and the views of the dissenting Justices in those cases converted into majority doctrine.

About twenty years were required to complete this process, in

the course of which the restricted view of the police power advanced by Justice Field in his dissent in Munn v. Illinois, 41 namely, that it is solely a power to prevent injury, was in effect ratified

by the Court itself. This occurred in Mugler v. Kansas, 42 where the

power was defined as embracing no more than the power to promote public health, morals, and safety. During the same interval,

ideas embodying the social compact and natural rights, which had

been espoused by Justice Bradley in his dissent in the SlaughterHouse Cases, 43 had been transformed tentatively into constitutionally enforceable limitations upon government. 44 The consequence was that the States in exercising their police powers

could foster only those purposes of health, morals, and safety which

the Court had enumerated, and could employ only such means as

would not unreasonably interfere with the fundamentally natural

rights of liberty and property, which Justice Bradley had equated

with freedom to pursue a lawful calling and to make contracts for

that purpose. 45

So having narrowed the scope of the state’s police power in deference to the natural rights of liberty and property, the Court next

proceeded to read into the concepts currently accepted theories of

laissez faire economics, reinforced by the doctrine of Social Darwinism as elaborated by Herbert Spencer, to the end that ‘‘liberty,’’ in
1576 AMENDMENT 14—RIGHTS GUARANTEED

46 143 U.S. 517, 551 (1892). 47See Fletcher v. Peck, 10. U.S. (6 Cr.) 87, 128 (1810). 48 94 U.S. 113, 123, 182 (1877). 49 123 U.S. 623 (1887). 50 Id. at 662. ‘‘We cannot shut out of view the fact, within the knowledge of all,

that the public health, the public morals, and the public safety, may be endangered

by the general use of intoxicating drinks; nor the fact . . . that . . . pauperism, and

crime . . . are, in some degree, at least, traceable to this evil.’’ 51 127 U.S. 678, 685 (1888).

particular, became synonymous with governmental hands-off in the

field of private economic relations. In Budd v. New York, 46 Justice

Brewer in dictum declared: ‘‘The paternal theory of government is

to me odious. The utmost possible liberty to the individual, and the

fullest possible protection to him and his property, is both the limitation and duty of government.’’ And to implement this point of

view the Court next undertook to water down the accepted maxim

that a state statute must be presumed to be valid until clearly

shown to be otherwise. 47 The first step was taken with opposite intention. This occurred in Munn v. Illinois, 48 where the Court, in

sustaining the legislation before it, declared: ‘‘For our purposes we

must assume that, if a state of facts could exist that would justify

such legislation, it actually did exist when the statute now under

consideration was passed.’’ Ten years later, in Mugler v. Kansas, 49

this procedure was improved upon, and a state-wide anti-liquor law

was sustained on the basis of the proposition that deleterious social

effects of the excessive use of alcoholic liquors were sufficiently notorious for the Court to be able to take notice of them, that is to

say, for the Court to review and appraise the consideration which

had induced the legislature to enact the statute in the first place. 50

However, in Powell v. Pennsylvania, 51 decided the following year,

the Court, confronted with a similar act involving oleomargarine,

concerning which it was unable to claim a like measure of common

knowledge, fell back upon the doctrine of presumed validity and

sustained the measure, declaring that ‘‘it does not appear upon the

face of the statute, or from any of the facts of which the Court must

take judicial cognizance, that it infringes rights secured by the fundamental law.’’

In contrast to the presumed validity rule, under which the

Court ordinarily is not obliged to go beyond the record of evidence

submitted by the litigants in determining the validity of a statute,

the judicial notice principle, as developed in Mugler v. Kansas, carried the inference that unless the Court, independently of the

record, is able to ascertain the existence of justifying facts accessible to it by the rules governing judicial notice, it will be obliged

to invalidate a police power regulation as bearing no reasonable or

adequate relation to the purposes to be subserved by the latter;
AMENDMENT 14—RIGHTS GUARANTEED 1577

52 291 U.S. 502 (1934). 53Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955). 54 Id. at 487, 491. 55The 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.,

namely, health, morals, or safety. For appraising state legislation

affecting neither liberty nor property, the Court found the rule of

presumed validity quite serviceable, but for invalidating legislation

constituting governmental interference in the field of economic relations, and, more particularly, labor-management relations, the

Court found the principle of judicial notice more advantageous.

This advantage was enhanced by the disposition of the Court, in

litigation embracing the latter type of legislation, to shift the burden of proof from the litigant charging unconstitutionality to the

State seeking enforcement. To the State was transferred the task

of demonstrating that a statute interfering with the natural right

of liberty or property was in fact ‘‘authorized’’ by the Constitution,

and not merely that the latter did not expressly prohibit enactment

of the same.

In 1934 the Court in Nebbia v. New York 52 discarded this approach to economic legislation, and has not since returned to it.

The modern approach was evidenced in a 1955 decision reversing

a lower court’s judgment invalidating a state statutory scheme regulating the sale of eyeglasses to the advantage of ophthalmologists

and optometrists in private professional practice and adversely to

opticians and to those employed by or using space in business establishments. ‘‘The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state

laws, regulatory of business and industrial conditions, because they

may be unwise, improvident, or out of harmony with a particular

school of thought. . . . We emphasize again what Chief Justice

Waite said in Munn v. Illinois, 94 U.S. 113, 134, ‘For protection

against abuses by legislatures the people must resort to the polls,

not to the courts.’ ’’ 53 Yet the Court went on to assess the reasons

which might have justified the legislature in prescribing the regulation at issue, leaving open the possibility that some regulation

might be found unreasonable. 54 More recent decisions, however,

have limited inquiry to whether the legislation is arbitrary or irrational, and have not addressed ‘‘reasonableness.’’ 55
1578 AMENDMENT 14—RIGHTS GUARANTEED

428 U.S. 1, 14–20 (1976); Hodel v. Indiana, 452 U.S. 314, 333 (1981); New Motor

Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 106–08 (1978); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124–25 (1978); Brotherhood of Locomotive Firemen

v. Chicago, R.I. & P. R.R., 393 U.S. 129, 143 (1968); Ferguson v. Skrupa, 372 U.S.

726, 730, 733 (1963). 56See Graham, The ‘‘Conspiracy Theory’’ of the Fourteenth Amendment, 47 YALE

L. J. 371 (1938). 57Munn 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). 58Smyth v. Ames, 169 U.S. 466, 522, 526 (1898); Kentucky Co. v. Paramount

Exch., 262 U.S. 544, 550 (1923); Liggett Co. v. Baldridge, 278 U.S. 105 (1928). 59 Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906); Western Turf

Ass’n v. Greenberg, 204 U.S. 359, 363 (1907); Pierce v. Society of Sisters, 268 U.S.

510, 535 (1925). Earlier, in Northern Securities Co. v. United States, 193 U.S. 197,

362 (1904), a case interpreting the federal antitrust law, Justice Brewer, in a concurring opinion, had declared that ‘‘a corporation . . . is not endowed with the inalienable rights of a natural person.’’ 60Grosjean v. American Press Co., 297 U.S. 233, 244 (1936) (‘‘a corporation is

a ‘person’ within the meaning of the equal protection and due process of law

clauses’’). In First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), faced with

the validity of state restraints upon expression by corporations, the Court did not

determine that corporations have First Amendment liberty rights—and other constitutional rights—but decided instead that expression was protected, irrespective of

the speaker, because of the interests of the listeners. See id. at 778 n.14 (reserving

question). But see id. at 809, 822 (Justices White and Rehnquist dissenting) (corporations as creatures of the state have the rights state gives them). 61 Yick Wo v. Hopkins, 118 U.S. 356 (1886); Terrace v. Thompson, 263 U.S. 197,

216 (1923). See Hellenic Lines v. Rhodetis, 398 U.S. 306, 309 (1970).

‘‘Persons’’ Defined.—Notwithstanding the historical controversy that has been waged concerning whether the framers of

the Fourteenth Amendment intended the word ‘‘person’’ to mean

only natural persons, or whether the word was substituted for the

word ‘‘citizen’’ with a view to protecting corporations from oppressive state legislation, 56 the Supreme Court, as early as the Granger Cases, 57 decided in 1877, upheld on the merits various state

laws without raising any question as to the status of railway corporation plaintiffs to advance due process contentions. There is no

doubt that a corporation may not be deprived of its property without due process of law, 58 and although prior decisions had held

that the ‘‘liberty’’ guaranteed by the Fourteenth Amendment is the

liberty of natural, not artificial, persons, 59 nevertheless a newspaper corporation was sustained, in 1936, in its objection that a

state law deprived it of liberty of press. 60 As to the natural persons

protected by the due process clause, these include all human beings

regardless of race, color, or citizenship. 61

Ordinarily, the mere interest of an official as such, in contrast

to an actual injury sustained by a natural or artificial person

through invasion of personal or property rights, has not been
AMENDMENT 14—RIGHTS GUARANTEED 1579

62Pennie v. Reis, 132 U.S. 464 (1889); Taylor and Marshall v. Beckham (No.

1), 178 U.S. 548 (1900); Tyler v. Judges of Court of Registration, 179 U.S. 405, 410

(1900); Straus v. Foxworth, 231 U.S. 162 (1913); Columbus & G. Ry. v. Miller, 283

U.S. 96 (1931). 63 City of Pawhuska v. Pawhuska Oil Co., 250 U.S. 394 (1919); City of Trenton

v. New Jersey, 262 U.S. 182 (1923); Williams v. Mayor of Baltimore, 289 U.S. 36

(1933). But see Madison School Dist. v. WERC, 429 U.S. 167, 175 n.7 (1976) (reserving question whether municipal corporation as an employer has a First Amendment

right assertable against State). 64 Coleman v. Miller, 307 U.S. 433, 441, 442, 443, 445 (1939); Boynton v. Hutchinson Gas Co., 291 U.S. 656 (1934); South Carolina Hwy. Dept. v. Barnwell Bros.,

303 U.S. 177 (1938).

The converse is not true, however, and the interest of a state official in vindicating the Constitution gives him no legal standing to attack the constitutionality of

a state statute in order to avoid compliance with it. Smith v. Indiana, 191 U.S. 138

(1903); Braxton County Court v. West Virginia, 208 U.S. 192 (1908); Marshall v.

Dye, 231 U.S. 250 (1913); Stewart v. Kansas City, 239 U.S. 14 (1915). See also Coleman v. Miller, 307 U.S. 433, 437–46 (1939). 65Long 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).

deemed adequate to enable him to invoke the protection of the

Fourteenth Amendment against state action. 62 Similarly, municipal corporations are viewed as having no standing ‘‘to invoke the

provisions of the Fourteenth Amendment in opposition to the will

of their creator,’’ the State. 63 However, state officers are acknowledged to have an interest, despite their not having sustained any

‘‘private damage,’’ in resisting an ‘‘endeavor to prevent the enforcement of laws in relation to which they have official duties,’’ and,

accordingly, may apply to federal courts for the ‘‘review of decisions

of state courts declaring state statutes which [they] seek to enforce

to be repugnant to the’’ Fourteenth Amendment. 64

Police Power Defined and Limited.—The police power of a

State today embraces regulations designed to promote the public

convenience or the general prosperity as well as those to promote

public safety, health, and morals, and is not confined to the suppression of what is offensive, disorderly, or unsanitary, but extends

to what is for the greatest welfare of the state. 65

Because the police power is the least limitable of the exercises

of government, such limitations as are applicable are not readily

definable. These limitations can be determined, therefore, only
1580 AMENDMENT 14—RIGHTS GUARANTEED

66 Hudson Water Co. v. McCarter, 209 U.S. 349 (1908); Eubank v. Richmond,

226 U.S. 137, 142 (1912); Erie R.R. v. Williams, 233 U.S. 685, 699 (1914); Sligh v.

Kirkwood, 237 U.S. 52, 58–59 (1915); Hadacheck v. Sebastian, 239 U.S. 394 (1915);

Hall v. Geiger-Jones Co., 242 U.S. 539 (1917); Panhandle Eastern Pipeline Co. v.

Highway Comm’n, 294 U.S. 613, 622 (1935). 67 Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548, 558 (1914). 68Liggett Co. v. Baldridge, 278 U.S. 105, 111–12 (1928); Treigle v. Acme Homestead Ass’n, 297 U.S. 189, 197 (1936). 69Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Welch v. Swasey, 214

U.S. 91, 107 (1909). See also Penn Central Transp. Co. v. City of New York, 438

U.S. 104 (1978); Agins v. City of Tiburon, 447 U.S. 255 (1980). See supra, pp. 1382–

95. 70 Noble State Bank v. Haskell, 219 U.S. 104, 110 (1911). 71 Erie R.R. v. Williams, 233 U.S. 685, 700 (1914). 72 New Orleans Public Service v. New Orleans, 281 U.S. 682, 687 (1930). 73 Abie State Bank v. Bryan, 282 U.S. 765, 776 (1931).

through appropriate regard to the subject matter of the exercise of

that power. 66 ‘‘It is settled [however] that neither the ‘contract’

clause nor the ‘due process’ clause had the effect of overriding the

power of the state to establish all regulations that are reasonably

necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express

grant; and that all contract and property [or other vested] rights

are held subject to its fair exercise.’’ 67 Insofar as the police power

is utilized by a State, the means employed to effect its exercise can

be neither arbitrary nor oppressive but must bear a real and substantial relation to an end which is public, specifically, the public

health, public safety, or public morals, or some other phase of the

general welfare. 68

A general rule often invoked is that if a police power regulation

goes too far, it will be recognized as a taking of property for which

compensation must be paid. 69 Yet where mutual advantage is a

sufficient compensation, an ulterior public advantage may justify a

comparatively insignificant taking of private property for what in

its immediate purpose seems to be a private use. 70 On the other

hand, mere ‘‘cost and inconvenience (different words, probably, for

the same thing) would have to be very great before they could become an element in the consideration of the right of a state to exert

its reserved power or its police power.’’ 71 Moreover, it is elementary that enforcement of uncompensated obedience to a regulation

passed in the legitimate exertion of the police power is not a taking

without due process of law. 72 Similarly, initial compliance with a

regulation which is valid when adopted occasions no forfeiture of

the right to protest when that regulation subsequently loses its validity by becoming confiscatory in its operation. 73
AMENDMENT 14—RIGHTS GUARANTEED 1581

74See 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. 75See the substantial confinement of the concept in Meachum v. Fano, 427 U.S.

215 (1976); and Montanye v. Haymes, 427 U.S. 236 (1976), in which the Court applied to its determination of what is a liberty interest the ‘‘entitlement’’ doctrine developed in property cases, in which the interest is made to depend upon state recognition of the interest through positive law, an approach contrary to previous due

process-liberty analysis. Cf. Morrissey v. Brewer, 408 U.S. 471, 482 (1972). For more

recent cases, see DeShaney v. Winnebago County Social Servs. Dep’t, 489 U.S. 189

(1989) (no Due Process violation for failure of state to protect an abused child from

his parent, even though abuse had been detected by social service agency); Collins

v. City of Harker Heights, 112 S. Ct. 1061 (1992) (failure of city to warn its employees about workplace hazards does not violate due process; the due process clause

does not impose a duty on the city to provide employees with a safe working environment). 76 83 U.S. (16 Wall.) 36 (1873). 77 165 U.S. 578, 589 (1897). ‘‘The liberty mentioned in that [Fourteenth] Amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the

right of the citizen to be free in the enjoyment of all his faculties, to be free to use

them in all lawful ways; to live and work where he will; to earn his livelihood by

any lawful calling; to pursue any livelihood or avocation, and for that purpose to

enter into all contracts which may be proper, necessary and essential to his carrying

out to a successful conclusion the purposes above mentioned.’’ 78 236 U.S. 1, 14 (1915).

‘‘Liberty’’.—The ‘‘liberty’’ guaranteed by the due process clause

has been variously defined by the Court, as will be seen hereinafter. In general, in the early years, it meant almost exclusively

‘‘liberty of contract,’’ but with the demise of liberty of contract came

a general broadening of ‘‘liberty’’ to include personal, political and

social rights and privileges. 74 Nonetheless, the Court is generally

chary of expanding the concept absent statutorily recognized

rights. 75

Liberty of Contract

Regulatory Labor Laws Generally.—Liberty of contract, a

concept originally advanced by Justices Bradley and Field in the

Slaughter-House Cases, 76 was elevated to the status of accepted

doctrine in Allgeyer v. Louisiana. 77 Applied repeatedly in subsequent cases as a restraint on federal and state power, freedom of

contract was also alluded to as a property right, as is evident in

the language of the Court in Coppage v. Kansas. 78 ‘‘Included in the

right of personal liberty and the right of private property—partaking of the nature of each—is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be
1582 AMENDMENT 14—RIGHTS GUARANTEED

79 Chicago, B. & Q. R.R. v. McGuire, 219 U.S. 549, 567, 570 (1911). See also

Wolff Packing Co. v. Industrial Court, 262 U.S. 522, 534 (1923). 80 169 U.S. 366 (1898). 81 198 U.S. 45 (1905). 82 127 U.S. 678 (1888). 83 123 U.S. 623 (1887). 84 169 U.S. 366, 398 (1898).

struck down or arbitrarily interfered with, there is a substantial

impairment of liberty in the long-established constitutional sense.’’

By a process of reasoning that was almost completely discarded

during the Depression, the Court was nevertheless able, prior

thereto, to sustain state ameliorative legislation by acknowledging

that freedom of contract was ‘‘a qualified and not an absolute right.

. . . Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the

interest of the community. . . . In dealing with the relation of the

employer and employed, the legislature has necessarily a wide field

of discretion in order that there may be suitable protection of

health and safety, and that peace and good order may be promoted

through regulations designed to insure wholesome conditions of

work and freedom from oppression.’’ 79

While continuing to acknowledge in abstract terms that freedom of contract is not absolute, the Court in fact was committed

to the principle that freedom of contract is the general rule and

that legislative authority to abridge it could be justified only by exceptional circumstances. To maintain such abridgments at a minimum, the Court intermittently employed the rule of judicial notice

in a manner best exemplified by a comparison of the early cases

of Holden v. Hardy 80 and Lochner v. New York, 81 decisions which

bear the same relation to each other as Powell v. Pennsylvania 82

and Mugler v. Kansas. 83

In Holden v. Hardy, 84 the Court, in reliance upon the principle

of presumed validity, allowed the burden of proof to remain with

those attacking the validity of a statute and upheld a Utah act limiting the period of labor in mines to eight hours per day. Taking

cognizance of the fact that labor below the surface of the earth was

attended by risk to person and to health and for these reasons had

long been the subject of state intervention, the Court registered its

willingness to sustain a limitation on freedom of contract which a

state legislature had adjudged ‘‘necessary for the preservation of

health of employees,’’ and for which there were ‘‘reasonable

grounds for believing that . . . [it was] supported by the facts.’’

Seven years later, however, a radically altered Court was predisposed in favor of the doctrine of judicial notice, and applied that
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85 198 U.S. 45 (1905). 86 Id. at 58–59. 87 Id. at 71, 74 (quoting Atkin v. Kansas, 191 U.S. 207, 223 (1903)).

doctrine to conclude in Lochner v. New York 85 that a law restricting employment in bakeries to ten hours per day and 60 hours per

week was an unconstitutional interference with the right of adult

laborers, sui juris, to contract for their means of livelihood. Denying that in so holding the Court was in effect substituting its own

judgment for that of the legislature, Justice Peckham nevertheless

maintained that whether the act was within the police power of the

State was a ‘‘question that must be answered by the Court,’’ and

then, in disregard of the accumulated medical evidence proffered in

support of the act, uttered the following observation. ‘‘In looking

through statistics regarding all trades and occupations, it may be

true that the trade of a baker does not appear to be as healthy as

some trades, and is also vastly more healthy than still others. To

the common understanding the trade of a baker has never been regarded as an unhealthy one. . . . It might be safely affirmed that

almost all occupations more or less affect the health. . . . But are

we all, on that account, at the mercy of the legislative majorities?’’ 86

Two dissenting opinions were filed in the case. Justice Harlan,

pointing to the abundance of medical testimony tending to show

that the life expectancy of bakers was below average, that their capacity to resist diseases was low, and that they were peculiarly

prone to suffer irritations of the eyes, lungs, and bronchial passages, concluded that the very existence of such evidence left the

reasonableness of the measure open to discussion and that the latter fact of itself put the statute within legislative discretion. ‘‘The

responsibility therefor rests upon the legislators, not upon the

courts. No evils arising from such legislation could be more far

reaching than those that might come to our system of government

if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon

grounds merely of justice or reason or wisdom annul statutes that

had received the sanction of the people’s representatives. . . . [T]he

public interests imperatively demand that legislative enactments

should be recognized and enforced by the courts as embodying the

will of the people, unless they are plainly and palpably, beyond all

question, in violation of the fundamental law of the Constitution.’’ 87

The second dissenting opinion, written by Justice Holmes, has

received the greater measure of attention because the views expressed therein were a forecast of the line of reasoning to be fol-
1584 AMENDMENT 14—RIGHTS GUARANTEED

88 198 U.S. at 75–76 (1905).

lowed by the Court some decades later. ‘‘This case is decided upon

an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I

should desire to study it further and long before making up my

mind. But I do not conceive that to be my duty, because I strongly

believe that my agreement or disagreement has nothing to do with

the right of a majority to embody their opinions in law. It is settled

by various decisions of this court that state constitutions and state

laws may regulate life in many ways which we as legislators might

think as injudicious or if you like as tyrannical as this, and which

equally with this interfere with the liberty to contract. . . . The

Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics. . . . But a constitution is not intended to embody a

particular economic theory, whether of paternalism and the organic

relations of the citizen to the state or of laissez faire. It is made

for people of fundamentally differing views, and the accident of our

finding certain opinions natural and familiar or novel and even

shocking ought not to conclude our judgment upon the question

whether statutes embodying them conflict with the Constitution.

. . . I think that the word liberty in the Fourteenth Amendment is

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

necessarily would admit that the statute proposed would infringe

fundamental principles as they have been understood by the traditions of our people and our law.’’ 88

In part, Justice Holmes’ criticism of his colleagues was unfair,

for his ‘‘rational and fair man’’ could not function in a vacuum, and,

in appraising the constitutionality of state legislation, could no

more avoid being guided by his preferences or ‘‘economic predilections’’ than were the Justices constituting the majority. Insofar

as he accepted the broader conception of due process of law in preference to the historical concept thereof as pertaining to the enforcement rather than the making of law, and did not affirmatively advocate a return to the maxim that the possibility of abuse is no argument against possession of a power, Justice Holmes, whether

consciously or not, was thus prepared to observe, along with his opponents in the majority, the very practices which were deemed to

have rendered inevitable the assumption by the Court of a ‘‘perpetual censorship’’ over state legislation. The basic distinction, therefore, between the positions taken by Justice Peckham for the majority and Justice Holmes, for what was then the minority, was the
AMENDMENT 14—RIGHTS GUARANTEED 1585

89 243 U.S. 426 (1917). 90 208 U.S. 412 (1908). 91 Id. 92 Adkins v. Children’s Hospital, 261 U.S. 525 (1923); Stettler v. O’Hara, 243

U.S. 629 (1917); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936). 93West 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).

espousal of the conflicting doctrines of judicial notice by the former

and of presumed validity by the latter.

Although the Holmes dissent bore fruit in time in the form of

the Bunting v. Oregon 89 and Muller v. Oregon 90 decisions modifying Lochner, the doctrinal approach employed in the earlier of

these by Justice Brewer continued to prevail until the Depression

in the 1930’s. In view of the shift in the burden of proof which application of the principle of judicial notice entailed, counsel defending the constitutionality of social legislation developed the practice

of submitting voluminous factual briefs replete with medical or

other scientific data intended to establish beyond question a substantial relationship between the challenged statute and public

health, safety, or morals. Whenever the Court was disposed to uphold measures pertaining to industrial relations, such as laws limiting hours of work, 91 it generally intimated that the facts thus

submitted by way of justification had been authenticated sufficiently for it to take judicial cognizance thereof. On the other hand,

whenever it chose to invalidate comparable legislation, such as enactments establishing minimum wage for women and children, 92 it

brushed aside such supporting data, proclaimed its inability to perceive any reasonable connection between the statute and the legitimate objectives of health or safety, and condemned the statute as

an arbitrary interference with freedom of contract.

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

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

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

sustain remedial legislation enacted in conformity with the latter

philosophy, the Court had to revise extensively its previously formulated concepts of ‘‘liberty’’ under the due process clause. Not

only did the Court take judicial notice of the demands for relief

arising from the Depression when it overturned prior holdings and

sustained minimum wage legislation, 93 but, in upholding state legislation designed to protect workers in their efforts to organize and

bargain collectively, the Court had to reconsider the scope of an
1586 AMENDMENT 14—RIGHTS GUARANTEED

94Miller 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). 95See, e.g., Holden v. Hardy, 169 U.S. 366 (1898) (statute limiting the hours of

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

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

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

establishment). 96 Atkin v. Kansas, 191 U.S. 207 (1903). 97St. Louis Consol. Coal Co. v. Illinois, 185 U.S. 203 (1902). 98Wilmington Mining Co. v. Fulton, 205 U.S. 60 (1907). 99 Barrett v. Indiana, 229 U.S. 26 (1913).

employer’s liberty of contract and recognize 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 other individuals

no less than by the arbitrary action of public officials, the Court in

effect transformed the due process clause into a source of encouragement to state legislatures to intervene affirmatively to mitigate

the effects of such coercion. By such modification of its views, liberty, in the constitutional sense of freedom resulting from restraint

upon government, was replaced by the civil liberty which an individual enjoys by virtue of the restraints which government, in his

behalf, imposes upon his neighbors.

Laws Regulating Hours of Labor.—Even during the

Lochner era, the due process clause was construed as permitting

enactment by the States of maximum hours laws applicable to

women workers 94 and to workers in specified lines of work thought

to be physically demanding or otherwise worthy of special protection. 95 Because of the almost plenary powers of the State and its

municipal subdivisions to determine the conditions for work on

public projects, statutes limiting the hours of labor on public works

were also upheld at a relatively early date. 96

Laws Regulating Labor in Mines.—The regulation of mines

being patently within the police power, States during this period

were also upheld in the enactment of laws providing for appointment of mining inspectors and requiring payment of their fees by

mine owners, 97 compelling employment of only licensed mine managers and mine examiners, and imposing upon mine owners liability for the willful failure of their manager and examiner to furnish

a reasonably safe place for workmen. 98 Other similar regulations

which have been sustained have included laws requiring that underground passageways meet or exceed a minimum width, 99 that

boundary pillars be installed between adjoining coal properties as
AMENDMENT 14—RIGHTS GUARANTEED 1587

100Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 (1914). 101 Booth v. Indiana, 237 U.S. 391 (1915). 102Sturges & Burn v. Beauchamp, 231 U.S. 320 (1913). 103Knoxville Iron Co. v. Harbison, 183 U.S. 13 (1901); Dayton Coal and Iron Co.

v. Barton, 183 U.S. 23 (1901); Keokee Coke Co. v. Taylor, 234 U.S. 224 (1914). 104 Erie R.R. v. Williams, 233 U.S. 685 (1914). 105St. Louis, I. Mt. & S.P. Ry. v. Paul, 173 U.S. 404 (1899). 106 Rail Coal Co. v. Ohio Industrial Comm’n, 236 U.S. 338 (1915). See also

McLean v. Arkansas, 211 U.S. 539 (1909). 107West 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).

a protection against flood in case of abandonment, 100 and that

washhouses be provided for employees. 101

Law Prohibiting Employment of Children in Hazardous

Occupations.—To make effective its prohibition against the employment of persons under 16 years of age in dangerous occupations, a State has been held to be competent to require employers

at their peril to ascertain whether their employees are in fact

below that age. 102

Laws Regulating Payment of Wages.—No unconstitutional

deprivation of liberty of contract was deemed to have been occasioned by a statute requiring redemption in cash of store orders or

other evidences of indebtedness issued by employers in payment of

wages. 103 Nor was any constitutional defect discernible in laws requiring railroads to pay their employees semimonthly 104 and to

pay them on the day of discharge, without abatement or reduction,

any funds due them. 105 Similarly, freedom of contract was held not

to be infringed by an act requiring that miners, whose compensation was fixed on the basis of weight, be paid according to coal in

the mine car rather than at a certain price per ton for coal

screened after it has been brought to the surface, and conditioning

such payment on the presence of no greater percentage of dirt or

impurities than that ascertained as unavoidable by the State Industrial Commission. 106

Minimum Wage Laws.—The theory that a law prescribing

minimum wages for women and children violates due process by

impairing freedom of contract was finally discarded in 1937. 107 The

modern theory of the Court, particularly when labor is the beneficiary of legislation, was stated by Justice Douglas for a majority

of the Court, in the following terms: ‘‘Our recent decisions make

plain that we do not sit as a superlegislature to weigh the wisdom

of legislation nor to decide whether the policy which it expresses

offends the public welfare. The legislative power has limits. . . .

But the state legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard
1588 AMENDMENT 14—RIGHTS GUARANTEED

108Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952). 109 Id. at 424–25. See also Dean v. Gadsden Times Pub. Co., 412 U.S. 543 (1973)

(sustaining statute providing that employee excused for jury duty should be entitled

to full compensation from employer, less jury service fee). 110 New York Cent. R.R. v. White, 243 U.S. 188, 200 (1917).

of the public welfare; they may within extremely broad limits control practices in the business-labor field, so long as specific constitutional prohibitions are not violated and so long as conflicts

with valid and controlling federal laws are avoided.’’ 108 Proceeding

from this basis the Court sustained a Missouri statute giving employees the right to absent themselves four hours on election day,

between the opening and closing of the polls, without deduction of

wages for their absence.

It was admitted that this was a minimum wage law, but, said

Justice Douglas, ‘‘the protection of the right of suffrage under our

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

police power. ‘‘Of course,’’ the Justice added, ‘‘many forms of regulation reduce the net return of the enterprise. . . . Most regulations

of business necessarily impose financial burdens on the enterprise

for which no compensation is paid. Those are part of the costs of

our civilization. Extreme cases are conjured up where an employer

is required to pay wages for a period that has no relation to the

legitimate end. Those cases can await decision as and when they

arise. The present law has no such infirmity. It is designed to

eliminate any penalty for exercising the right of suffrage and to remove a practical obstacle to getting out the vote. The public welfare

is a broad and inclusive concept. The moral, social, economic, and

physical well-being of the community is one part of it; the political

well-being, another. The police power which is adequate to fix the

financial burden for one is adequate for the other. The judgment

of the legislature that time out for voting should cost the employee

nothing may be a debatable one. It is indeed conceded by the opposition to be such. But if our recent cases mean anything, they leave

debatable issues as respects business, economic, and social affairs

to legislative decision. We could strike down this law only if we returned to the philosophy of the Lochner, Coppage, and Adkins

cases.’’ 109

Workers’ Compensation Laws.—‘‘This court repeatedly has

upheld the authority of the States to establish by legislation departures from the fellow-servant rule and other common-law rules affecting the employer’s liability for personal injuries to the employee.’’ 110 ‘‘These decisions have established the propositions that

the rules of law concerning the employer’s responsibility for personal injury or death of an employee arising in the course of em-
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111 Arizona Employers’ Liability Cases, 250 U.S. 400, 419–20 (1919). 112 In determining what occupations may be brought under the designation of

‘‘hazardous,’’ the legislature may carry the idea to the ‘‘vanishing point.’’ Ward &

Gow v. Krinsky, 259 U.S. 503, 520 (1922). 113 New York Central R.R. v. White, 243 U.S. 188 (1917); Mountain Timber Co.

v. Washington, 243 U.S. 219 (1917). 114 Arizona Employers’ Liability Cases, 250 U.S. 400 (1919). 115 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14–20 (1976). But see id.

at 38 (Justice Powell concurring).

ployment are not beyond alteration by legislation in the public interest; that no person has a vested right entitling him to have

these any more than other rules of law remain unchanged for his

benefit; and that, if we exclude arbitrary and unreasonable

changes, liability may be imposed upon the employer without fault,

and the rules respecting his responsibility to one employee for the

negligence of another and respecting contributory negligence and

assumption of risk are subject to legislative change.’’ 111 Accordingly, a state statute which provided an exclusive system to govern

the liabilities of employers and the rights of employees and their

dependents to compensation for disabling injuries and death caused

by accident in certain hazardous occupations, 112 was held not to

work a denial of due process in rendering the employer liable irrespective of the doctrines of negligence, contributory negligence, assumption of risk, and negligence of fellow-servants, nor in depriving the employee or his dependents of the higher damages which,

in some cases, might be rendered under these doctrines. 113 Likewise, an act which allowed an injured employee an election of remedies permitting restricted recovery under a compensation law although guilty of contributory negligence, and full compensatory

damages under the Employers’ Liability Act, did not deprive an

employer of his property without due process of law. 114

The imposition upon coal mine operators, and ultimately coal

consumers, of the liability of compensating former employees who

terminated work in the industry before passage of the law for black

lung disabilities contracted in the course of their work was sustained by the Court as a rational measure to spread the costs of

the employees’ disabilities to those who have profited from the

fruits of their labor. 115 Legislation readjusting rights and burdens

is not unlawful solely because it upsets otherwise settled expectations, but it must take account of the realities previously existing,

i.e., that the danger may not have been known or appreciated, or

that actions might have been taken in reliance upon the current

state of the law; therefore, legislation imposing liability on the

basis of deterrence or of blameworthiness might not have passed

muster.
1590 AMENDMENT 14—RIGHTS GUARANTEED

116 Chicago, B. & Q. R.R. v. McGuire, 219 U.S. 549 (1911). 117 Alaska Packers Ass’n v. Industrial Accident Comm’n, 294 U.S. 532 (1935). 118Thornton v. Duffy, 254 U.S. 361 (1920). 119 Booth Fisheries v. Industrial Comm’n, 271 U.S. 208 (1926). 120Staten Island Ry. v. Phoenix Co., 281 U.S. 98 (1930). 121Sheehan Co. v. Shuler, 265 U.S. 371 (1924); New York State Rys. v. Shuler,

265 U.S. 379 (1924). 122 New York Cent. R.R. v. Bianc, 250 U.S. 596 (1919). Attorneys are not deprived of property or their liberty of contract by restriction imposed by the State

Contracts limiting liability for injuries, consummated in advance of the injury received, may be prohibited by the legislature,

which may further stipulate that subsequent acceptance of benefits

under such contracts shall not constitute satisfaction of a claim for

injuries thereafter sustained. 116 Also, as applied to a nonresident

alien employee hired within the State but injured outside, an act

forbidding any contracts exempting employers from liability for injuries outside the State has been construed as not denying due

process to the employer. 117 The fact that a State, after having allowed employers to cover their liability with a private insurer, subsequently withdrew that privilege and required them to contribute

to a state insurance fund was held to effect no unconstitutional

deprivation as applied to an employer who had obtained protection

from an insurance company before this change went into effect. 118

As long as the right to come under a workmen’s compensation statute is optional with an employer, the latter, having chosen to accept benefits thereof, is estopped from attempting to escape its burdens by challenging the constitutionality of a provision thereof

which makes the finding of fact of an industrial commission conclusive if supported by any evidence regardless of its preponderance. 119

When, by the terms of a workers’ compensation statute, the

wrongdoer, in case of wrongful death, is obliged to indemnify the

employer or the insurance carrier of the employer of the decedent,

in the amount which the latter were required under the act to contribute into special compensation funds, no unconstitutional deprivation of the wrongdoer’s property was discernible. 120 By the same

course of reasoning neither the employer nor the carrier was held

to have been denied due process by another provision in an act requiring payments by them, in case an injured employee dies without dependents, into special funds to be used for vocational rehabilitation or disability compensation of injured workers of other establishments. 121 Compensation also need not be based exclusively

on loss of earning power, and an award authorized by statute for

injuries resulting in disfigurement of the face or head, independent

of compensation for inability to work, has been conceded to be neither an arbitrary nor oppressive exercise of the police power. 122
AMENDMENT 14—RIGHTS GUARANTEED 1591

on the fees which they may charge in cases arising under the workmen’s compensation law. Yeiser v. Dysart, 267 U.S. 540 (1925). 123 Justice Black in Lincoln Federal Labor Union v. Northwestern Iron & Metal

Co., 335 U.S. 525, 535 (1949). In his concurring opinion, contained in the companion

case of AFL v. American Sash & Door Co., 335 U.S. 538, 543–44 (1949), Justice

Frankfurter summarized the now obsolete doctrines employed by the Court to strike

down state laws fostering unionization. ‘‘[U]nionization encountered the shibboleths

of a premachine age and these were reflected in juridical assumptions that survived

the facts on which they were based. Adam Smith was treated as though his generalizations had been imparted to him on Sinai and not as a thinker who addressed

himself to the elimination of restrictions which had become fetters upon initiative

and enterprise in his day. Basic human rights expressed by the constitutional conception of ‘liberty’ were equated with theories of laissez faire. The result was that

economic views of confined validity were treated by lawyers and judges as though

the Framers had enshrined them in the Constitution. . . . The attitude which regarded any legislative encroachment upon the existing economic order as infected

with unconstitutionality led to disrespect for legislative attempts to strengthen the

wage-earners’ bargaining power. With that attitude as a premise, Adair v. United

States, 208 U.S. 161 (1908), and Coppage v. Kansas, 236 U.S. 1 (1915), followed

logically enough; not even Truax v. Corrigan, 257 U.S. 312 (1921), could be considered unexpected.’’

In Adair and Coppage the Court voided statutes outlawing ‘‘yellow dog’’ contracts whereby, as a condition of obtaining employment, a worker had to agree not

to join or to remain a member of a union; these laws, the Court ruled, impaired the

employer’s ‘‘freedom of contract’’—the employer’s unrestricted right to hire and fire.

In Truax, the Court on similar grounds invalidated an Arizona statute which denied

the use of injunctions to employers seeking to restrain picketing and various other

communicative actions by striking employees. And in Wolff Co. v. Industrial Court,

262 U.S. 522 (1923); 267 U.S. 552 (1925) and Dorchy v. Kansas, 264 U.S. 286

(1924), the Court had also ruled that a statute compelling employers and employees

to submit their controversies over wages and hours to state arbitration was unconstitutional as part of a system compelling employers and employees to continue in

business on terms not of their own making. 124 301 U.S. 486 (1937). 125Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922). In conjunction with its

approval of this statute, the Court also sanctioned judicial enforcement of a local

policy rule which rendered illegal an agreement of several insurance companies having a local monopoly of a line of insurance, to the effect that no company would employ within two years anyone who had been discharged from, or left, the service of

any of the others.

Collective Bargaining.—During the 1930s, liberty, as translated into what one Justice labeled the Allgeyer-Lochner-AdairCoppage doctrine, 123 lost its potency as an obstacle to legislation

calculated to enhance the bargaining capacity of workers as against

that already possessed by their employers. Prior to the manifestation, in Senn v. Tile Layers Union, 124 of a greater willingness to

defer to legislative judgment as to the wisdom and need of such enactments, the Court had, on occasion, sustained measures affecting

the employment relationship, e.g., a statute requiring every corporation to furnish, upon request by any employee being discharged or leaving its service, a letter, signed by the superintendent or manager, setting forth the nature and duration of the employee’s service and the true cause for leaving. 125 Added provisions

that such letters should be on plain paper selected by the em-
1592 AMENDMENT 14—RIGHTS GUARANTEED

126 Chicago, R.I. & P. Ry. v. Perry, 259 U.S. 548 (1922). 127Dorchy v. Kansas, 272 U.S. 306 (1926). 128 301 U.S. 468 (1937). 129 257 U.S. 312 (1921). 130 Cases disposing of the contention that restraints on picketing amount to a

denial of freedom of speech and constitute therefore a deprivation of liberty without

due process of law have been set forth under the First Amendment. See pp. 1102,

1121, supra.

ployee, signed in ink and sealed, and free from superfluous figures

and words, were also sustained as not amounting to any unconstitutional deprivation of liberty and property. 126 On the ground that

the right to strike is not absolute, the Court in a similar manner

upheld a statute under which a labor union official was punished

for having ordered a strike for the purpose of coercing an employer

to pay a wage claim of a former employee. 127

The significance of Senn v. Tile Layers Union 128 as an indicator of the range of the alteration of the Court’s views concerning

the constitutionality of state labor legislation, derives in part from

the fact that the statute upheld therein was not appreciably different from that voided in Truax v. Corrigan. 129 Both statutes

withheld the remedy of injunction. Because, however, the invalidated act did not contain the more liberal and also more precise

definition of a labor dispute set forth in the sustained enactment

and, above all, did not affirmatively purport to sanction peaceful

picketing only, the Court was enabled to maintain that Truax v.

Corrigan, insofar as ‘‘the statute there in question was . . . applied

to legalize conduct which was not simply peaceful picketing,’’ was

distinguishable. The statute upheld in Senn authorized the giving

of publicity to labor disputes, declared peaceful picketing and patrolling lawful, and prohibited the granting of injunctions against

such conduct; the statute was applied to deny an injunction to a

tiling contractor being picketed by a union because he refused to

sign a closed shop agreement containing a provision requiring him

to abstain from working in his own business as a tile layer or helper. Inasmuch as the enhancement of job opportunities for members

of the union was a legitimate objective, the State was held competent to authorize the fostering of that end by peaceful picketing,

and the fact that the sustaining of the union in its efforts at peaceful persuasion might have the effect of preventing Senn from continuing in business as an independent entrepreneur was declared

to present an issue of public policy exclusively for legislative determination. 130

Years later, the policy of many state legislatures had evolved

in the direction of attempting to control the abuse of the enormous

economic power that previously enacted protective measures had
AMENDMENT 14—RIGHTS GUARANTEED 1593

131 Railway Mail Ass’n v. Corsi, 326 U.S. 88, 94 (1945). Justice Frankfurter, concurring, declared that ‘‘the insistence by individuals of their private prejudices . . .,

in relations like those now before us, ought not to have a higher constitutional sanction than the determination of a State to extend the area of nondiscrimination beyond that which the Constitution itself exacts.’’ Id. at 98. 132 335 U.S. 525 (1949). 133 335 U.S. 538 (1949). 134 335 U.S. 525, 534, 537. In a lengthy opinion, in which he registered his concurrence with both decisions, Justice Frankfurter set forth extensive statistical data

calculated to prove that labor unions not only were possessed of considerable economic power but by virtue of such power were no longer dependent on the closed

shop for survival. He would therefore leave to the legislatures the determination

‘‘whether it is preferable in the public interest that trade unions should be subjected

to state intervention or left to the free play of social forces, whether experience has

disclosed ‘union unfair labor practices,’ and if so, whether legislative correction is

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

549–50. 135 336 U.S. 245 (1949).

enabled labor unions to amass, and here too the Court found restrictions constitutional. Thus the Court upheld application of a

state prohibition on racial discrimination by unions, rejecting

claims that the measure interfered unlawfully with the union’s

right to choose its members and abridged its property rights, and

liberty of contract. Inasmuch as the union ‘‘[held] itself out to represent the general business needs of employees’’ and functioned

‘‘under the protection of the State,’’ the union was deemed to have

forfeited the right to claim exemption from legislation protecting

workers against discriminatory exclusion. 131

Similarly approved as constitutional in Lincoln Federal Labor

Union v. Northwestern Iron & Metal Co. 132 and AFL v. American

Sash & Door Co. 133 were state laws outlawing the closed shop.

When labor unions invoked in their own defense the freedom of

contract doctrine that hitherto had been employed to nullify legislation intended for their protection, the Court, speaking through Justice Black, announced its refusal ‘‘to return . . . to . . . [a] due process philosophy that has been deliberately discarded. . . . The due

process clause,’’ it maintained, does not ‘‘forbid a State to pass laws

clearly designed to safeguard the opportunity of nonunion workers

to get and hold jobs, free from discrimination against them because

they are nonunion workers.’’ 134 Also in harmony with the last mentioned pair of cases is UAW v. WERB, 135 upholding enforcement of

the Wisconsin Employment Peace Act to proscribe as an unfair

labor practice efforts of a union, after collective bargaining negotiations had become deadlocked, to coerce an employer through a

‘‘slow-down’’ in production achieved by the frequent, irregular, and

unannounced calling of union meetings during working hours. ‘‘No

one,’’ declared the Court, can question ‘‘the State’s power to police

coercion by . . . methods’’ which involve ‘‘considerable injury to
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136 Id. at 253. 137 336 U.S. 490 (1949). Other recent cases regulating picketing are treated

under the First Amendment. See pp. 1173–79, supra. 138 94 U.S. 113 (1877). 139 Chicago, M. & St.P. Ry. v. Minnesota, 134 U.S. 418 (1890).

property and intimidation of other employees by threats.’’ 136 Finally, in Giboney v. Empire Storage Co., 137 the Court acknowledged that no violation of the Constitution results when a state law

forbidding agreements in restraint of trade is construed by state

courts as forbidding members of a union of ice peddlers from peacefully picketing a wholesale ice distributor’s place of business for the

sole purpose of inducing the latter not to sell to nonunion peddlers.

Regulation of Business Enterprises: Rates, Charges, and

Conditions of Service

‘‘Business Affected With a Public Interest’’—In endeavoring

to measure the impact of the due process clause upon efforts by the

States to control the charges exacted by various businesses for

their services, the Supreme Court, almost from the inception of the

Fourteenth Amendment, devoted itself to the examination of two

questions: (1) whether the clause precluded that kind of regulation

of certain types of business, and (2) the nature of the restraint, if

any, which this clause imposed on state control of rates in the case

of businesses as to which such control existed. For a brief interval

following the ratification of the Fourteenth Amendment, the Supreme Court appears to have underestimated the significance of

the due process clause as a substantive restraint on the power of

States to fix rates chargeable by an industry deemed appropriately

subject to such controls. Thus, in Munn v. Illinois, 138 the first of

the ‘‘Granger Cases,’’ in which maximum charges established by a

state legislature for Chicago grain elevator companies were challenged, not as being confiscatory in character, but rather as a regulation beyond the power of any state agency to impose, the Court,

in an opinion that was largely dictum, declared that the due process clause did not operate as a safeguard against oppressive rates,

that if regulation was permissible, the severity thereof was within

legislative discretion and could be ameliorated only by resort to the

polls. Not much time elapsed, however, before the Court effected a

complete withdrawal from this position. By 1890 139 it had fully

converted the due process clause into a positive restriction which

the judicial branch was duty bound to enforce whenever state agencies sought to impose rates which, in its estimation, were arbitrary

or unreasonable.
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140Wolff Packing Co. v. Industrial Court, 262 U.S. 522, 535–36 (1923). 141Munn v. Illinois, 94 U.S. 113 (1877); Budd v. New York, 143 U.S. 517, 546

(1892); Brass v. North Dakota ex rel. Stoesser, 153 U.S. 391 (1894). 142 Cotting v. Kansas City Stock Yards Co., 183 U.S. 79 (1901). 143Townsend v. Yeomans, 301 U.S. 441 (1937). 144German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914); Aetna Insurance

Co. v. Hyde, 275 U.S. 440 (1928). 145O’Gorman & Young v. Hartford Ins. Co., 282 U.S. 251 (1931).

In contrast to the speed with which the Court arrived at those

above mentioned conclusions, more than fifty years were to elapse

before it developed its currently applicable formula for determining

the propriety of subjecting specific businesses to state regulation of

their prices or charges. Prior to 1934, unless a business was ‘‘affected with a public interest,’’ control of its prices, rates, or conditions of service was viewed as an unconstitutional deprivation of

liberty and property without due process of law. During the period

of its application, however, this standard, ‘‘business affected with

a public interest,’’ never acquired any precise meaning, and as a

consequence lawyers were never able to identify all those qualities

or attributes which invariably distinguished a business so affected

from one not so affected. The most coherent effort by the Court was

the following classification prepared by Chief Justice Taft. 140 ‘‘(1)

Those [businesses] which are carried on under the authority of a

public grant of privileges which either expressly or impliedly imposes the affirmative duty of rendering a public service demanded

by any member of the public. Such are the railroads, other common

carriers and public utilities. (2) Certain occupations, regarded as

exceptional, the public interest attaching to which, recognized from

earliest times, has survived the period of arbitrary laws by Parliament or Colonial legislatures for regulating all trades and

callings. Such are those of the keepers of inns, cabs and grist mills.

. . . (3) Businesses which though not public at their inception may

be fairly said to have risen to be such and have become subject in

consequence to some government regulation. They have come to

hold such a peculiar relation to the public that this is superimposed upon them. In the language of the cases, the owner by devoting his business to the public use, in effect grants the public an

interest in that use and subjects himself to public regulation to the

extent of that interest although the property continues to belong to

its private owner and to be entitled to protection accordingly.’’

Through application of this now outmoded formula the Court

found it possible to sustain state laws regulating charges made by

grain elevators, 141 stockyards, 142 and tobacco warehouses, 143 and

fire insurance rates 144 and commissions paid to fire insurance

agents. 145 Voided, because the businesses sought to be controlled
1596 AMENDMENT 14—RIGHTS GUARANTEED

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

this conclusion the Court might be said to have elevated to the status of prevailing

doctrine the views advanced in previous decisions by dissenting Justices. Thus, Justice Stone, dissenting in Ribnik v. McBride, 277 U.S. 350, 359–60 (1928), had declared: ‘‘Price regulation is within the State’s power whenever any combination of

circumstances seriously curtails the regulative force of competition so that buyers

or sellers are placed at such a disadvantage in the bargaining struggle that a legislature might reasonably anticipate serious consequences to the community as a

whole.’’ In his dissenting opinion in New State Ice Co. v. Liebmann, 285 U.S. 262,

302–03 (1932), Justice Brandeis had also observed: ‘‘The notion of a distinct category

of business ‘affected with a public interest’ employing property ‘devoted to a public

use’ rests upon historical error. In my opinion the true principle is that the State’s

power extends to every regulation of any business reasonably required and appropriate for the public protection. I find in the due process clause no other limitation

upon the character or the scope of regulation permissible.’’

were deemed to be not so affected, were state statutes fixing the

price at which gasoline may be sold, 146 or at which ticket brokers

may resell tickets purchased from theatres, 147 and limiting competition in the manufacture and sale of ice through the withholding

of licenses to engage therein. 148

Nebbia v. New York.—In upholding, by a vote of five-to-four,

a depression-induced New York statute fixing prices at which fluid

milk might be sold, the Court in 1934 finally shelved the concept

of ‘‘a business affected with a public interest.’’ 149 Older decisions,

insofar as they negatived a power to control prices in businesses

found not ‘‘to be clothed with a public use’’ were now viewed as

resting, ‘‘finally, upon the basis that the requirements of due process were not met because the laws were found arbitrary in their

operation and effect. Price control, like any other form of regulation, is [now] unconstitutional only if arbitrary, discriminatory, or

demonstrably irrelevant to the policy the legislature is free to

adopt, and hence an unnecessary and unwarranted interference

with individual liberty.’’ Conceding that ‘‘the dairy industry is not,

in the accepted sense of the phrase, a public utility,’’ that is, a

‘‘business affected with a public interest,’’ the Court in effect declared that price control henceforth is to be viewed merely as an

exercise by the government of its police power, and as such is subject only to the restrictions which due process imposes on arbitrary

interference with liberty and property. Nor was the Court disturbed by the fact that a ‘‘scientific validity’’ had been claimed for

the theories of Adam Smith relating to the ‘‘price that will clear the

market.’’ However much the minority might stress the

unreasonableness of any artificial state regulation interfering with
AMENDMENT 14—RIGHTS GUARANTEED 1597

150 Justice McReynolds, speaking for the dissenting Justices, labelled the controls imposed by the challenged statute as a ‘‘fanciful scheme to protect the farmer

against undue exactions by prescribing the price at which milk disposed of by him

at will may be resold.’’ Intimating that the New York statute was as efficacious as

a safety regulation which required ‘‘householders to pour oil on their roofs as a

means of curbing the spread of a neighborhood fire,’’ Justice McReynolds insisted

that ‘‘this Court must have regard to the wisdom of the enactment,’’ and must determine ‘‘whether the means proposed have reasonable relation to something within

legislative power.’’ 291 U.S., 556, 558 (1934). 151 313 U.S. 236, 246 (1941). 152 277 U.S. 350 (1928). Adams v. Tanner, 244 U.S. 590 (1917), was disapproved

in Ferguson v. Skrupa, 372 U.S. 726 (1963), and Tyson & Bro. v. Banton, 273 U.S.

418 (1927), was effectively overruled in Gold v. DiCarlo, 380 U.S. 520 (1965), without the Court hearing argument on it. 153 94 U.S. 113 (1877). See also Peik v. Chicago & Nw. Ry., 94 U.S. 164 (1877). 154 Rate-making is deemed to be one species of price fixing. FPC v. Natural Gas

Pipeline Co., 315 U.S. 575, 603 (1942).

the determination of prices by ‘‘natural forces,’’ 150 the majority was

content to note that the ‘‘due process clause makes no mention of

prices’’ and that ‘‘the courts are both incompetent and unauthorized

to deal with the wisdom of the policy adopted or the practicability

of the law enacted to forward it.’’

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

business that determines the validity of a regulation of its rates or

charges but solely the reasonableness of the regulation, the Court

had little difficulty in upholding, in Olsen v. Nebraska, 151 a state

law prescribing the maximum commission which private employment agencies may charge. Rejecting the contentions of the employment agencies that the need for such protective legislation had not

been shown, the Court held that differences of opinion as to the

wisdom, need, or appropriateness of the legislation ‘‘suggest a

choice which should be left to the States;’’ and that there was ‘‘no

necessity for the State to demonstrate before us that evils persist

despite the competition’’ between public, charitable, and private

employment agencies. The older case of Ribnik v. McBride, 152

which had invalidated similar legislation upon the now obsolete

concept of a ‘‘business affected with a public interest,’’ was expressly overruled.

Judicial Review of Publicly Determined Rates and Charges

Development.—In Munn v. Illinois, 153 its initial holding concerning the applicability of the Fourteenth Amendment to governmental price fixing, 154 the Court not only asserted that governmental regulation of rates charged by public utilities and allied

businesses was within the States’ police power, but added that the

determination of such rates by a legislature was conclusive and not

subject to judicial review or revision. Expanding the range of per-
1598 AMENDMENT 14—RIGHTS GUARANTEED

155 Nebbia v. New York, 291 U.S. 502, 539 (1934). 156 96 U.S. 97 (1878). See also Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226

(1897). 157 116 U.S. 307 (1886).

missible governmental fixing of prices, the Court in Nebbia 155 declared that prices established for business in general would invite

judicial condemnation only if ‘‘arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt.’’ The

latter standard of judicial appraisal, as will be subsequently noted,

represents less of a departure from the principle enunciated in the

Munn case than that which the Court evolved, in the years following 1877, to measure the validity of state imposed public utility

rates, and this difference in the judicial treatment of prices and

rates accordingly warrants an explanation at the outset. Unlike operators of public utilities who, in return for the grant of certain exclusive, virtually monopolistic privileges by the governmental unit

enfranchising them, must assume an obligation to provide continuous service, proprietors of other businesses are in receipt of no

similar special advantages and accordingly are unrestricted in the

exercise of their right to liquidate and close their establishments.

Owners of ordinary businesses, therefore, at liberty to escape by

dissolution the consequences of publicly imposed charges deemed to

be oppressive, have thus far been unable to convince the courts

that they too, no less than public utilities, are in need of protection

through judicial review.

Consistently with its initial pronouncement in the Munn case

that reasonableness of compensation allowed under permissible

rate regulation presented a legislative rather than a judicial question, the Court, in Davidson v. New Orleans, 156 also rejected the

contention that, by virtue of the due process clause, businesses

were nevertheless entitled to ‘‘just compensation’’ for losses resulting from price controls. Less than a decade was to elapse, however,

before the Court, appalled perhaps by prospective consequences of

leaving business ‘‘at the mercy of the majority of the legislature,’’

began to reverse itself. Thus, in 1886, Chief Justice Waite, in the

Railroad Commission Cases, 157 warned that ‘‘this power to regulate is not a power to destroy; [and] the State cannot do that in

law which amounts to a taking of property for public use without

just compensation or without due process of law;’’ in other words,

a confiscatory rate could not be imposed. By treating ‘‘due process

of law’’ and ‘‘just compensation’’ as equivalents, the Court, contrary

to its earlier holding in Davidson v. New Orleans, was in effect asserting that the imposition of a rate so low as to damage or diminish private property ceased to be an exercise of a State’s police
AMENDMENT 14—RIGHTS GUARANTEED 1599

158Dow v. Beidelman, 125 U.S. 680 (1888). 159 134 U.S. 418, 458 (1890). 160 Budd v. New York, 143 U.S. 517 (1892). 161 154 U.S. 362, 397 (1894). 162 Insofar as judicial intervention resulting in the invalidation of legislatively

imposed rates has involved carriers, it should be noted that the successful complainant invariably has been the carrier, not the shipper. 163 169 U.S. 466 (1898). Of course the validity of rates prescribed by a State for

services wholly within its limits must be determined wholly without reference to the

interstate business done by a public utility. Domestic business should not be made

to bear the losses on interstate business and vice versa. Thus a State has no power

to require the hauling of logs at a loss or at rates that are unreasonable, even if

a railroad receives adequate revenues from the intrastate long haul and the interpower and became one of eminent domain. Nevertheless, even the

added measure of protection afforded by the doctrine of the Railroad Commission Cases proved inadequate to satisfy public utilities; the doctrine allowed courts to intervene only to prevent legislative imposition of a confiscatory rate, a rate so low as to be productive of a loss and to amount to taking of property without just

compensation. The utilities sought nothing less than a judicial acknowledgment that courts could review the ‘‘reasonableness’’ of legislative rates. Although as late as 1888 the Court doubted that it

possessed the requisite power, 158 it finally acceded to the wishes

of the utilities in 1890, and, in Chicago, M. & St.P. Railway v. Minnesota 159 ruled as follows: ‘‘The question of the reasonableness of

rates . . . , involving as it does the element of reasonableness both

as regards the company and as regards the public, is eminently a

question for judicial investigation, requiring due process of law for

its determination. If the company is deprived of the power of charging rates for the use of its property, and such deprivation takes

place in the absence of an investigation by judicial machinery, it

is deprived of the lawful use of its property, and thus, in substance

and effect, of the property itself, without due process of law. . . .’’

Despite a last-ditch attempt to reconcile Munn with Chicago,

M. & St.P. Railway by confining application of the latter decision

to cases in which rates had been fixed by a commission and denying its pertinence to rates directly imposed by a legislature, 160 the

Court in Reagan v. Farmer’s Loan and Trust Co. 161 set at rest all

lingering doubts over the scope of judicial intervention by declaring

that, ‘‘if a carrier,’’ in the absence of a legislative rate, ‘‘attempted

to charge a shipper an unreasonable sum,’’ the Court, in accordance

with common law principles, will pass on the reasonableness of its

rates, and has ‘‘jurisdiction . . . to award the shipper any amount

exacted . . . in excess of a reasonable rate. . . . The province of the

courts is not changed, nor the limit of judicial inquiry altered, because the legislature instead of a carrier prescribes the rates.’’ 162

Reiterating virtually the same principle in Smyth v. Ames, 163 the
1600 AMENDMENT 14—RIGHTS GUARANTEED

state 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). 164 Reagan v. Farmers’ Loan & Trust Co., 154, U.S. 362, 397 (1894). 165 ICC v. Illinois Cent. R.R., 215 U.S. 452, 470 (1910). This statement, made

in the context of federal ratemaking, appears to be equally applicable to judicial review of state agency actions.

Court not only obliterated the distinction between confiscatory and

unreasonable rates but contributed the additional observation that

the requirements of due process are not met unless a court not only

reviews the reasonableness of a rate but also determines whether

the rate permits the utility to earn a fair return on a fair valuation

of its investment.

Limitations on Judicial Review.—Even while reviewing the

reasonableness of rates the Court recognized some limits on judicial review. As early as 1894, the Court asserted: ‘‘The courts are

not authorized to revise or change the body of rates imposed by a

legislature or a commission; they do not determine whether one

rate is preferable to another, or what under all circumstances

would be fair and reasonable as between the carriers and the shippers; they do not engage in any mere administrative work; . . .

[however, there can be no doubt] of their power and duty to inquire

whether a body of rates . . . is unjust and unreasonable . . . and

if found so to be, to restrain its operation.’’ 164 And later, in 1910,

the Court made a similar observation that courts may not, ‘‘under

the guise of exerting judicial power, usurp merely administrative

functions by setting aside’’ an order of the commission within the

scope of the power delegated to such commission, upon the ground

that such power was unwisely or expediently exercised. 165

Also inferable from these early holdings, and effective to restrict the bounds of judicial investigation, is a distinction between

factual questions that relate only to the wisdom or expediency of

a rate order, and are unreviewable, and other factual determinations that bear on a commission’s power to act and are inseparable

from the constitutional issue of confiscation, hence are reviewable.

This distinction was accorded adequate emphasis by the Court in
AMENDMENT 14—RIGHTS GUARANTEED 1601

166 231 U.S. 298, 310–13 (1913). 167Des Moines Gas Co. v. Des Moines, 238 U.S. 153 (1915). 168Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 452 (1913). 169Knoxville v. Water Co., 212 U.S. 1 (1909). 170Smith v. Illinois Bell Tel. Co., 270 U.S. 587 (1926). 171Willcox v. Consolidated Gas Co., 212 U.S. 19 (1909). 172 174 U.S. 739, 750, 754 (1899). See also Minnesota Rate Cases (Simpson v.

Shepard), 230 U.S. 352, 433 (1913).

Louisville & Nashville R.R. v. Garrett, 166 in which it declared that

‘‘the appropriate question for the courts’’ is simply whether a ‘‘commission,’’ in establishing a rate, ‘‘acted within the scope of its

power’’ and did not violate ‘‘constitutional rights . . . by imposing

confiscatory requirements.’’ The carrier contesting the rate was not

entitled to have a court also pass upon a question of fact regarding

the reasonableness of a higher rate the carrier charged prior to the

order of the commission. All that need concern a court, it said, is

the fairness of the proceeding whereby the commission determined

that the existing rate was excessive, but not the expediency or wisdom of the commission’s having superseded that rate with a rate

regulation of its own.

Likewise, with a view to diminishing the number of opportunities courts have for invalidating rate regulations of state commissions, the Court placed various obstacles in the path of the complaining litigant. Thus, not only must a person challenging a rate

assume the burden of proof, 167 but he must present a case of

‘‘manifest constitutional invalidity’’; 168 if, notwithstanding this effort, the question of confiscation remains in doubt, no relief will be

granted. 169 Moreover, even though a public utility which has petitioned a commission for relief from allegedly confiscatory rates

need not await indefinitely for the commission’s decision before applying to a court for equitable relief, 170 the court ought not to

interfere in advance of any experience of the practical result of

such rates. 171

In the course of time, however, a distinction emerged between

ordinary factual determinations by state commissions and factual

determinations which were found to be inseparable from the legal

and constitutional issue of confiscation. In two older cases arising

from proceedings begun in lower federal courts to enjoin rates, the

Court initially adopted the position that it would not disturb findings of fact insofar as these were supported by substantial evidence. Thus, in San Diego Land Company v. National City, 172 the

Court declared that after a legislative body had fairly and fully investigated and acted, by fixing what it believed to be reasonable

rates, the courts cannot step in and set aside the action due to a

different conclusion about the reasonableness of the rates. ‘‘Judicial
1602 AMENDMENT 14—RIGHTS GUARANTEED

173San 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). 174For its current position, see Crowell v. Benson, 285 U.S. 22 (1932). 175 222 U.S. 541, 547–48 (1912). See also ICC v. Illinois Cent. R.R., 215 U.S.

452, 470 (1910).

interference should never occur unless the case presents, clearly

and beyond all doubt, such a flagrant attack upon the rights of

property under the guise of regulation as to compel the court to say

that the rates prescribed will necessarily have the effect to deny

just compensation for private property taken for the public use.’’

And in a similar later case 173 the Court expressed even more clearly its reluctance to reexamine ordinary factual determinations. It

is not bound ‘‘to reexamine and weigh all the evidence . . . or to

proceed according to . . . [its] independent opinion as to what are

proper rates. It is enough if . . . [the Court] cannot say that it was

impossible for a fair-minded board to come to the result which was

reached.’’

Moreover, in reviewing orders of the Interstate Commerce

Commission, the Court, at least in earlier years, 174 chose to be

guided by approximately the same standards it had originally formulated for examining regulations of state commissions. The following excerpt from its holding in ICC v. Union Pacific R.R. 175 represents an adequate summation of the law as it stood prior to 1920:

‘‘[Q]uestions of fact may be involved in the determination of questions of law, so that an order, regular on its face, may be set aside

if it appears that the rate is so low as to be confiscatory . . . ; or

if the Commission acted so arbitrarily and unjustly as to fix rates

contrary to evidence, or without evidence to support it; or if the authority therein involved has been exercised in such an unreasonable manner as to cause it to be within the elementary rule that

the substance, and not the shadow, determines the validity of the

exercise of the power. . . . In determining these mixed questions of

law and fact, the Court confines itself to the ultimate question as

to whether the Commission acted within its power. It will not consider the expediency or wisdom of the order, or whether, on like

testimony, it would have made a similar ruling . . . [The Commission’s] conclusion, of course, is subject to review, but when supported by evidence is accepted as final; not that its decision . . .

can be supported by a mere scintilla of proof—but the courts will

not examine the facts further than to determine whether there was

substantial evidence to sustain the order.’’

The Ben Avon Case.—These standards of review were

abruptly rejected by the Court in Ohio Valley Co. v. Ben Avon Bor-
AMENDMENT 14—RIGHTS GUARANTEED 1603

176 253 U.S. 287 (1920). 177 Id. at 289. In injunctive proceedings, evidence is freshly introduced whereas

in the cases received on appeal from state courts, the evidence is found within the

record. 178 231 U.S. 298 (1913). 179 253 U.S. 287, 291, 295 (1920). 180 94 U.S. 113 (1877). Because some of these methods or formulas, no longer

required as a matter of constitutional law, may continue to be used by state commissions in drafting rate orders, a survey is provided below.

(1) Fair Value.—On the premise that a utility is entitled to demand a rate

schedule that will yield a ‘‘fair return upon the value’’ of the property which it employs for public convenience, the Court in Smyth v. Ames, 169 U.S. 466, 546–47

ough, 176 as being no longer sufficient to satisfy the requirements

of due process. Unlike previous confiscatory rate litigation, which

had developed from rulings of lower federal courts in injunctive

proceedings, this case reached the Supreme Court by way of appeal

from a state appellate tribunal; 177 although the state court had in

fact reviewed the evidence and ascertained that the state commission’s findings of fact were supported by substantial evidence, it

also construed the statute providing for review as denying to state

courts ‘‘the power to pass upon the weight of such evidence.’’ Largely on the strength of this interpretation of the applicable state statute, the Court held that when the order of a legislature, or of a

commission, prescribing a schedule of maximum future rates is

challenged as confiscatory, ‘‘the State must provide a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and

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

process clause, Fourteenth Amendment.’’

Without departing from the ruling previously enunciated in

Louisville & Nashville R.R. v. Garrett, 178 that the failure of a State

to grant a statutory right of judicial appeal from a commission’s

regulation is not violative of due process as long as relief is obtainable by a bill in equity for injunction, the Court also held that the

alternative remedy of injunction expressly provided by state law

did not afford an adequate opportunity for testing judicially a confiscatory rate order. It conceded the principle stressed by the dissenting Justices that ‘‘where a State offers a litigant the choice of

two methods of judicial review, of which one is both appropriate

and unrestricted, the mere fact that the other which the litigant

elects is limited, does not amount to a denial of the constitutional

right to a judicial review.’’ 179

History of the Valuation Question.—For almost fifty years

the Court wandered through a maze of conflicting formulas for valuing public service corporation property only to emerge therefrom

in 1944 at a point not very far removed from Munn v. Illinois. 180
1604 AMENDMENT 14—RIGHTS GUARANTEED

(1898), held that determination of such value necessitated consideration of at least

such factors as ‘‘the original cost of construction, the amount expended in permanent improvements, the amount and market value of . . . [the utility’s] bonds and

stock, the present as compared with the original cost of construction, [replacement

cost], the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating expenses.

(2) Reproduction Cost.—Prior to the demise in 1944 of the Smyth v. Ames fair

value formula, two of the components thereof were accorded special emphasis with

the second quickly surpassing the first in measure of importance. These were: (1)

the actual cost of the property (‘‘the original cost of construction together with the

amount expended in permanent improvements’’) and (2) reproduction costs (‘‘the

present as compared with the original cost of construction’’). For varied application

of the reproduction cost formula, see San Diego Land Co. v. National City, 174 U.S.

739, 757 (1899); San Diego Land & Town Co. v. Jasper, 189 U.S. 439, 443 (1903);

Willcox v. Consolidated Gas Co., 212 U.S. 19, 52 (1909); Minnesota Rate Cases

(Simpson v. Shepard), 230 U.S. 352 (1913); Galveston Elec. Co. v. Galveston, 258

U.S. 388, 392 (1922); Missouri ex rel. Southwestern Bell Tel. Co. v. Public Serv.

Comm’n, 262 U.S. 276 (1923); Bluefield Co. v. Public Serv. Comm’n, 262 U.S. 679

(1923); Georgia Ry. v. Railroad Comm’n, 262 U.S. 625, 630 (1923); McCardle v. Indianapolis Co., 272 U.S. 400 (1926); St Louis & O’Fallon Ry. v. United States, 279

U.S. 461 (1929).

(3) Prudent Investment (Versus Reproduction Cost).—This method of valuation,

championed by Justice Brandeis in a separate opinion in Missouri ex rel. Southwestern Bell Tel. Co. v. Public Serv. Comm’n, 262 U.S. 276, 291–92, 302, 306–07 (1923),

was defined as follows: ‘‘The compensation which the Constitution guarantees an opportunity to earn is the reasonable cost of conducting the business. Cost includes

not only operating expenses, but also capital charges. Capital charges cover the allowance, by way of interest, for the use of capital . . . the allowance for the risk

incurred; and enough more to attract capital. . . . Where the financing has been

proper, the cost to the utility of the capital, required to construct, equip and operate

its plant, should measure the rate of return which the Constitution guarantees opportunity to earn.’’ Advantages to be derived from ‘‘adoption of the amount prudently invested as the rate base and the amount of the capital charge as the measure of the rate of return’’ would, according to Justice Brandeis, be nothing less than

the attainment of a ‘‘basis for decision which is certain and stable. The rate base

would be ascertained as a fact, not determined as a matter of opinion. It would not

fluctuate with the market price of labor, or materials, or money.

As a method of valuation, the prudent investment theory was not accorded any

acceptance until the Depression of the 1930’s. The sharp decline in prices which occurred during this period doubtless contributed to the loss of affection for reproduction costs. In Los Angeles Gas Co. v. Railroad Comm’n, 289 U.S. 287 (1933) and

Railroad Comm’n v. Pacific Gas Co., 302 U.S. 388, 399, 405 (1938), the Court upheld

respectively a valuation from which reproduction costs had been excluded and another in which historical cost served as the rate base. Later, in 1942, when in FPC

v. Natural Gas Pipeline Co., 315 U.S. 575, the Court further emphasized its abandonment of the reproduction cost factor, there developed momentarily the prospect

that prudent investment might be substituted. This possibility was quickly

negatived, however, by the Hope Gas case, (FPC v. Hope Natural Gas Co., 320 U.S.

591 (1944)), which dispensed with the necessity of relying upon any formula for the

purpose of fixing valid rates.

(4) Depreciation.—No less indispensable to the determination of the fair value

mentioned in Smyth v. Ames was the amount of depreciation to be allowed as a deduction from the measure of cost employed, whether the latter be actual cost, reproduction cost, or any other form of cost determination. Although not mentioned in

Smyth v. Ames, the Court gave this item consideration in Knoxville v. Water Co.,

212 U.S. 1, 9–10 (1909); but notwithstanding its early recognition as an allowable

item of deduction in determining value, depreciation continued to be the subject of

controversy arising out of the difficulty of ascertaining it and of computing annual
AMENDMENT 14—RIGHTS GUARANTEED 1605

allowances to cover the same. Indicative of such controversy was the disagreement

as to whether annual allowances shall be in such amount as will permit the replacement of equipment at current costs, i.e., present value, or at original cost. In the

Hope Gas case, 320 U.S. at 606, the Court reversed United Railways v. West, 280

U.S. 234, 253–254 (1930), insofar as that holding rejected original cost as the basis

of annual depreciation allowances.

(5) Going Concern Value and Good Will.—Whether intangibles were to be included in valuation was not passed upon in Smyth v. Ames, but shortly thereafter,

in Des Moines Gas Co. v. Des Moines, 238 U.S. 153, 165 (1915), the Court declared

it to be self-evident ‘‘that there is an element of value in an assembled and established plant, doing business and earning money, over one not thus advanced, . . .

[and that] this element of value is a property right, and should be considered in determining the value of the property, upon which the owner has a right to make a

fair return. . . .’’ Generally described as going concern value, this element has never

been precisely defined by the Court. In its latest pronouncement on the subject, uttered in FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 589 (1942), the Court denied that there is any ‘‘constitutional requirement that going concern value, even

when it is an appropriate element to be included in a rate base, must be separately

stated and appraised as such. . . . [Valuations have often been sustained] without

separate appraisal of the going concern element. . . . When that has been done, the

burden rests on the regulated company to show that this item has neither been adequately covered in the rate base nor recouped from prior earnings of the business.’’

Franchise value and good will, on the other hand, have been consistently excluded

from valuation; the latter presumably because a utility invariably enjoys a monopoly

and consumers have no choice in the matter of patronizing it. The latter proposition

has been developed in the following cases: Willcox v. Consolidated Gas Co., 212 U.S.

19 (1909); Des Moines Gas Co. v. Des Moines, 238 U.S. 153, 163–64 (1915); Galveston Elec. Co. v. Galveston, 258 U.S. 388 (1922); Los Angeles Gas Co. v. Railroad

Comm’n, 289 U.S. 287, 313 (1933).

(6) Salvage Value.—It is not a constitutional error to disregard theoretical reproduction cost for a plant which ‘‘‘no responsible person would think of reproducing.’’ Accordingly, where, due to adverse conditions, a street-surface railroad had

lost all value except for scrap or salvage, it was permissible for a commission, as

the Court held in Market Street Ry. v. Railroad Comm’n, 324 U.S. 548, 562, 564

(1945), to use as a rate the price at which the utility offered to sell its property to

a citizen. Moreover, the Commission’s order was not invalid even through under the

prescribed rate the utility would operate at a loss; for the due process clause cannot

be invoked to protect a public utility against business hazards, such as the loss of,

or failure to obtain patronage. On the other hand, in the case of a water company

whose franchise has expired, but where there is no other source of supply, its plant

should be valued as actually in use rather than at what the property would bring

for some other use in case the city should build its own plant. Denver v. Denver

Union Water Co., 246 U.S. 178 (1918).

(7) Past Losses and Gains.—‘‘The Constitution [does not] require that the losses

of . . . [a] business in one year shall be restored from future earnings by the device

of capitalizing the losses and adding them to the rate base on which a fair return

and depreciation allowance is to be earned.’’ FPC v. Natural Gas Pipeline Co., 315

U.S. 575, 590 (1942). Nor can past losses be used to enhance the value of the property to support a claim that rates for the future are confiscatory, Galveston Elec.

Co. v. Galveston, 258 U.S. 388 (1922), any more than profits of the past can be used

to sustain confiscatory rates for the future Newton v. Consolidated Gas Co., 258

U.S. 165, 175 (1922); Board of Comm’rs v. New York Tel. Co., 271 U.S. 23, 31–32

(1926). 181 315 U.S. 575, 586 (1942).

By holding in FPC v. Natural Gas Pipeline Co., 181 that the ‘‘Constitution does not bind rate-making bodies to the service of any single formula or combination of formulas,’’ and in FPC v. Hope Natu-
1606 AMENDMENT 14—RIGHTS GUARANTEED

182 320 U.S. 591, 602 (1944). Although this and the previously cited decision

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

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

standards or procedures. 183Ohio Valley Co. v. Ben Avon Borough, 253 U.S. 287 (1920). 184 In FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 599 (1942), Justices

Black, Douglas, and Murphy, in a concurring opinion, proposed to travel the road

all the way back to Munn v. Illinois, and deprive courts of the power to void rates

simply because they deem the latter to be unreasonable. In a concurring opinion,

in Driscoll v. Edison Co., 307 U.S. 104, 122 (1939), Justice Frankfurter temporarily

adopted a similar position; he declared that ‘‘the only relevant function of law . . .

[in rate controversies] is to secure observance of those procedural safeguards in the

exercise of legislative powers which are the historic foundations of due process.’’

However, in his dissent in FPC v. Hope Natural Gas Co., 320 U.S. 591, 625 (1944),

he disassociated himself from this proposal, and asserted that ‘‘it was decided [more

than fifty years ago] that the final say under the Constitution lies with the judiciary.’’185FPC 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). 186Duquesne 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).

ral Gas Co., 182 that ‘‘it is the result reached not the method employed which is controlling, . . . [that] it is not the theory but the

impact of the rate order which counts, [and that] if the total effect

of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end,’’ the Court, in effect, abdicated from the position assumed in the Ben Avon case. 183 Without

surrendering the judicial power to declare rates unconstitutional on

ground of a substantive deprivation of due process, 184 the Court

announced that it would not overturn a result it deemed to be just

simply because ‘‘the method employed [by a commission] to reach

that result may contain infirmities. . . . [A] Commission’s order

does not become suspect by reason of the fact that it is challenged.

It is the product of expert judgment which carries a presumption

of validity. And he who would upset the rate order . . . carries the

heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.’’ 185 The

Court recently reaffirmed Hope Natural Gas’s emphasis on the bottom line: ‘‘[t]he Constitution within broad limits leaves the States

free to decide what rate-setting methodology best meets their needs

in balancing the interests of the utility and the public.’’ 186
AMENDMENT 14—RIGHTS GUARANTEED 1607

187FPC v. Hope Natural Gas Co., 320 U.S. 591, 603 (1944) (citing Chicago G.T.

Ry. v. Wellman, 143 U.S. 339, 345–46 (1892)); Missouri ex rel. Southwestern Bell

Tel. Co. v. Public Serv. Comm’n, 262 U.S. 276, 291 (1923). 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). 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).

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 (Other Than Rates)

In General.—By virtue of the nature of the business they

carry on and the public’s interest in it, public utilities are subject

to state regulation exerted either directly by the legislature or by

duly authorized administrative bodies. 188 But because the property

of public utilities remains under the full protection of the Constitution, it follows that whenever the state regulates in a manner that

infringes the right of ownership in what the Court considers to be

an ‘‘arbitrary’’ or ‘‘unreasonable’’ way, due process is violated. 189

Thus, a city cannot take possession of the equipment of a street

railway company, the franchise of which has expired, 190 although

it may subject the company to the alternative of accepting an inadequate price for its property or of ceasing operations and removing

its property from the streets. 191 Likewise, a city desirous of establishing a lighting system of its own may not remove, without compensation, the fixtures of a lighting company already occupying the

streets under a franchise, 192 although it may compete with a com-
1608 AMENDMENT 14—RIGHTS GUARANTEED

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 Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548, 558 (1914). See also

Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226, 255 (1897); Chicago, B. & Q. Ry.

v. Drainage Comm’rs, 200 U.S. 561, 591–92 (1906); New Orleans Pub. Serv. v. New

Orleans, 281 U.S. 682 (1930). 197 Consumers’ Co. v. Hatch, 224 U.S. 148 (1912). 198Panhandle Eastern Pipe Line Co. v. Highway Comm’n, 294 U.S. 613 (1935). 199 New Orleans Gas Co. v. Drainage Comm’n, 197 U.S. 453 (1905).

pany that has no exclusive charter. 193 The property of a telegraph

company is not illegally taken, however, by a municipal ordinance

that demands, as a condition for the establishment of poles and

conduits in city streets, that the city’s wires be carried free of

charge, and which provides for the moving of the conduits, when

necessary, at company expense. 194

And, the fact that a State, by mere legislative or administrative fiat, cannot convert a private carrier into a common carrier

will not protect a foreign corporation which has elected to enter a

State the constitution and laws of which require that it operate its

local private pipe line as a common carrier. Such foreign corporation is viewed as having waived its constitutional right to be secure

against imposition of conditions which amount to a taking of property without due process of law. 195

Compulsory Expenditures: Grade Crossings, and the

Like.—Generally, the enforcement of uncompensated obedience to

a regulation for the public health and safety is not an unconstitutional taking of property without due process of law. 196 Thus,

where the applicable rule so required at the time of the granting

of its charter, a water company may be compelled to furnish connections at its own expense to one residing on an ungraded street

in which it voluntarily laid its lines. 197 However, if pipe and telephone lines are located on a right of way owned by a pipeline company, the latter cannot, without a denial of due process, be required to relocate such equipment at its own expense, 198 but if its

pipes are laid under city streets, a gas company validly may be obligated to assume the cost of moving them to accommodate a municipal drainage system. 199

To require a turnpike company, as a condition of its taking

tolls, to keep its road in repair and to suspend collection thereof,

conformably to a state statute, until the road is put in good order,

does not take property without due process of law, notwithstanding

the fact that present patronage does not yield revenue sufficient to
AMENDMENT 14—RIGHTS GUARANTEED 1609

200 Norfolk Turnpike Co. v. Virginia, 225 U.S. 264 (1912). 201 International Bridge Co. v. New York, 254 U.S. 126 (1920). 202 Chicago, B. & Q. R.R. v. Nebraska, 170 U.S. 57 (1898). 203 Chicago, B. & Q. Ry. v. Drainage Comm’n, 200 U.S. 561 (1906); Chicago &

Alton R.R. v. Tranbarger, 238 U.S. 67 (1915); Lake Shore & Mich. So. Ry. v. Clough,

242 U.S. 375 (1917). 204Pacific Gas Co. v. Police Court, 251 U.S. 22 (1919). 205 Chicago, St. P., Mo. & O. Ry. v. Holmberg, 282 U.S. 162 (1930). 206 Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935). See also Lehigh

Valley R.R. v. Commissioners, 278 U.S. 24, 35 (1928) (upholding imposition of grade

crossing costs on a railroad although ‘‘near the line of reasonableness,’’ and reiterating that ‘‘unreasonably extravagant’’ requirements would be struck down). 207 Atchison T. & S.F. Ry. v. Public Util. Comm’n, 346 U.S. 346, 352 (1953).

maintain the road in proper condition. 200 Nor is a railroad bridge

company unconstitutionally deprived of its property when, in the

absence of proof that the addition will not yield a reasonable return, it is ordered to widen its bridge by inclusion of a pathway for

pedestrians and a roadway for vehicles. 201

Similarly upheld against due process/taking claims were requirements that railroads repair a viaduct under which they operate, 202 or reconstruct a bridge or provide means for passing water

for drainage through their embankment, 203 or sprinkle that part of

the street occupied by them. 204 On the other hand, a requirement

that an underground cattle-pass is be constructed, not as a safety

measure but as a means of sparing the farmer the inconvenience

attendant upon the use of an existing and adequate grade crossing,

was held to be a prohibited taking of the railroad’s property for private use. 205 As to grade crossing elimination, the rule is well established that the state may exact from railroads the whole, or

such part, of the cost thereof as it deems appropriate, even though

commercial highway users, who make no contribution whatsoever,

benefit from such improvements.

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

and an ‘‘arbitrary’’ and ‘‘unreasonable’’ imposition may be set aside,

the Court’s modern approach to substantive due process analysis

makes this possibility far less likely than it once was. Distinguishing a 1935 case invalidating a statutorily mandated 50% cost sharing which in effect prevented particularized findings of reasonableness (and which contained language suggesting that railroads could

not fairly be required to subsidize competitive transportation

modes), 206 the Court in 1953 ruled that the costs of grade separation improvements need not be allocated solely on the basis of benefits that would accrue to railroad property. 207 While the Court

cautioned that ‘‘allocation of costs must be fair and reasonable,’’ it

also took an approach very deferential to local governmental decisions, stating that in the exercise of the police power to meet transportation, safety, and convenience needs of a growing community,
1610 AMENDMENT 14—RIGHTS GUARANTEED

208 United Gas Co. v. Railroad Comm’n, 278 U.S. 300, 308–09 (1929). See also

New York ex rel. Woodhaven Gas Light Co. v. Public Serv. Comm’n, 269 U.S. 244

(1925); New York & Queens Gas Co. v. McCall, 245 U.S. 345 (1917). 209Missouri Pac. Ry. v. Kansas, 216 U.S. 262 (1910); Chesapeake & Ohio Ry.

v. Public Serv. Comm’n, 242 U.S. 603 (1917); Fort Smith Traction Co. v. Bourland,

267 U.S. 330 (1925). 210 Chesapeake & Ohio Ry. v. Public Serv. Comm’n, 242 U.S. 603, 607 (1917);

Brooks-Scanlon Co. v. Railroad Comm’n, 251 U.S. 396 (1920); Railroad Comm’n v.

Eastern Tex. R.R., 264 U.S. 79 (1924); Broad River Co. v. South Carolina ex rel.

Daniel, 281 U.S. 537 (1930). 211 Atchison, T. & S.F. Ry. v. Railroad Comm’n, 283 U.S. 380, 394–95 (1931). 212Minneapolis & St. L. R.R. v. Minnesota, 193 U.S. 53 (1904). 213Gladson v. Minnesota, 166 U.S. 427 (1897). 214Missouri Pac. Ry. v. Kansas, 216 U.S. 262 (1910). 215 Chesapeake & Ohio Ry. v. Public Serv. Comm’n, 242 U.S. 603 (1917). 216Lake Erie & W. R.R. v. Public Util. Comm’n, 249 U.S. 422 (1919); Western

& Atlantic R.R. v. Public Comm’n, 267 U.S. 493 (1925).

‘‘the cost of such improvements may be allocated all to the railroads.’’

Compellable Services.—The primary duty of a public utility

being to serve on reasonable terms all those who desire the service

it renders, it follows that a company cannot pick and choose and

elect to serve only those portions of its territory which it finds most

profitable, leaving the remainder to get along without the service

which it alone is in a position to give. Compelling a gas company

to continue serving specified cities as long as it continues to do

business in other parts of the State entails therefore no unconstitutional deprivation. 208 Likewise, a railway may be compelled to continue the service of a branch or part of a line although the operation involves a loss. 209 But even though a utility, as a condition

of enjoyment of powers and privileges granted by the State, is

under a continuing obligation to provide reasonably adequate service, and even though that obligation cannot be avoided merely because performance occasions financial loss, yet if a company is at

liberty to surrender its franchise and discontinue operations, it cannot be compelled to continue at a loss. 210

Pursuant to the principle that a State may require railroads to

provide adequate facilities suitable for the convenience of the communities they serve, 211 such carriers have been obligated to establish stations at proper places for the convenience of patrons, 212 to

stop all their intrastate trains at county seats, 213 to run a regular

passenger train instead of a mixed passenger and freight train, 214

to furnish passenger service on a branch line previously devoted exclusively to carrying freight, 215 to restore a siding used principally

by a particular plant but available generally as a public track, and

to continue, even though not profitable by itself, sidetrack 216 as

well as the upkeep of a switch track leading from its main line to
AMENDMENT 14—RIGHTS GUARANTEED 1611

217 Alton R.R. v. Illinois Commerce Comm’n, 305 U.S. 548 (1939).

218Missouri Pacific Ry. v. Nebraska, 217 U.S. 196 (1910).

219 Chesapeake & Ohio Ry. v. Public Serv. Comm’n, 242 U.S. 603, 607 (1917).

220Great Northern Ry. v. Minnesota, 238 U.S. 340 (1915); Great Northern Ry.

Co. v. Cahill, 253 U.S. 71 (1920).

221 Chicago, M. & St. P. R.R. v. Wisconsin, 238 U.S. 491 (1915).

industrial plants. 217 However, a statute requiring a railroad without indemnification to install switches on the application of owners

of grain elevators erected on its right-of-way was held void. 218

Whether a state order requiring transportation service is to be

viewed as reasonable may necessitate consideration of such facts as

the likelihood that pecuniary loss will result to the carrier, the nature, extent and productiveness of the carrier’s intrastate business,

the character of the service required, the public need for it, and its

effect upon service already being rendered. 219 Requirements for

service having no substantial relation to transportation have been

voided, as in the case of an order requiring railroads to maintain

cattle scales to facilitate trading in cattle, 220 and a prohibition

against letting down an unengaged upper berth while the lower

berth was occupied. 221

‘‘Since the decision in Wisconsin, M. & P.R. Co. v. Jacobson,

179 U.S. 287 (1900), there can be no doubt of the power of a State,

acting through an administrative body, to require railroad companies to make track connections. But manifestly that does not mean

that a Commission may compel them to build branch lines, so as

to connect roads lying at a distance from each other; nor does it

mean that they may be required to make connections at every

point where their tracks come close together in city, town and

country, regardless of the amount of business to be done, or the

number of persons who may utilize the connection if built. The

question in each case must be determined in the light of all the

facts and with a just regard to the advantage to be derived by the

public and the expense to be incurred by the carrier. . . . If the

order involves the use of property needed in the discharge of those

duties which the carrier is bound to perform, then, upon proof of

the necessity, the order will be granted, even though ‘the furnishing of such necessary facilities may occasion an incidental pecuniary loss.’ . . . Where, however, the proceeding is brought to compel a carrier to furnish a facility not included within its absolute

duties, the question of expense is of more controlling importance.

In determining the reasonableness of such an order the Court must

consider all the facts—the places and persons interested, the vol-
1612 AMENDMENT 14—RIGHTS GUARANTEED

222Washington 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). 223Louisville & Nashville R.R. v. Stock Yards Co., 212 U.S. 132 (1909). 224Michigan Cent. R.R. v. Michigan R.R. Comm’n, 236 U.S. 615 (1915). 225 Chicago, M. & St. P. Ry. v. Iowa, 233 U.S. 334 (1914). 226 Chicago, M. & St. P. Ry. v. Minneapolis Civic Ass’n, 247 U.S. 490 (1918).

Nor are railroads denied due process when they are forbidden to exact a greater

charge for a shorter distance than for a longer distance. Louisville & Nashville R.R.

v. Kentucky, 183 U.S. 503, 512 (1902); Missouri Pacific Ry. v. McGrew Coal Co., 244

U.S. 191 (1917). 227Wadley Southern Ry. v. Georgia, 235 U.S. 651 (1915). 228 Railroad Co. v. Richmond, 96 U.S. 521 (1878). 229 Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548 (1914). 230Great Northern Ry. v. Minnesota ex rel. Clara City, 246 U.S. 434 (1918). 231Denver & R. G. R.R. v. Denver, 250 U.S. 241 (1919). 232 Nashville, C. & St. L. Ry. v. White, 278 U.S. 456 (1929).

ume of business to be affected, the saving in time and expense to

the shipper, as against the cost and loss to the carrier.’’ 222

Although a carrier is under a duty to accept goods tendered at

its station, it cannot be required, upon payment simply for the

service of carriage, to accept cars offered at an arbitrary connection

point near its terminus by a competing road seeking to reach and

use the former’s terminal facilities. Nor may a carrier be required

to deliver its cars to connecting carriers without adequate protection from loss or undue detention or compensation for their use. 223

But a carrier may be compelled to interchange its freight cars with

other carriers under reasonable terms, 224 and to accept, for

reshipment over its lines to points within the State, cars already

loaded and in suitable condition. 225

Due process is not denied when two carriers, who wholly own

and dominate a small connecting railroad, are prohibited from exacting higher charges from shippers accepting delivery over said

connecting road than are collected from shippers taking delivery at

the terminals of said carriers. 226 Nor is it ‘‘unreasonable’’ or ‘‘arbitrary’’ to require a railroad to desist from demanding advance payment on merchandise received from one carrier while it accepts

merchandise of the same character at the same point from another

carrier without such prepayment. 227

Safety Regulations Applicable to Railroads.—Governmental power to regulate railroads in the interest of safety has

long been conceded. The following regulations have been upheld: a

prohibition against operation on certain streets, 228 restrictions on

speed, operations, and the like, in business sections, 229 requirement of construction of a sidewalk across a right of way, 230 or removal of a track crossing at a thoroughfare, 231 compelling the presence of a flagman at a crossing notwithstanding that automatic devices might be cheaper and better, 232 compulsory examination of
AMENDMENT 14—RIGHTS GUARANTEED 1613

233 Nashville, C. & St. L. Ry. v. Alabama, 128 U.S. 96 (1888). 234 Chicago, R.I. & P. Ry. v. Arkansas, 219 U.S. 453 (1911); St. Louis, I. Mt.

& So. Ry. v. Arkansas, 240 U.S. 518 (1916); Missouri Pacific R.R. v. Norwood, 283

U.S. 249 (1931); Firemen v. Chicago, R.I. & P.R.R. 393 U.S. 129 (1968). 235 Atlantic Coast Line R.R. v. Georgia, 234 U.S. 280 (1914). 236 Erie R.R. v. Solomon, 237 U.S. 427 (1915). 237 New York, N.H. and H.R.R. v. New York, 165 U.S. 628 (1897). 238 Chicago & N.W. Ry. v. Nye Schneider Fowler Co., 260 U.S. 35 (1922). See

also Yazoo & Miss. V.R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912); cf. Adams

Express Co. v. Croninger, 226 U.S. 491 (1913). 239 Atlantic Coast Line R.R. v. Glenn, 239 U.S. 388 (1915). 240St. Louis & San Francisco Ry. v. Mathews, 165 U.S. 1 (1897). 241 Chicago & N.W. Ry. v. Nye Schneider Fowler Co., 260 U.S. 35 (1922). 242Kansas City Ry. v. Anderson, 233 U.S. 325 (1914). 243St. Louis, I. Mt. & So. Ry. v. Wynne, 224 U.S. 354 (1912). See also Chicago,

M. & St. P. Ry. v. Polt, 232 U.S. 165 (1914).

employees for color blindness, 233 full crews on certain trains, 234

specification of a type of locomotive headlight, 235 safety appliance

regulations, 236 and a prohibition on the heating of passenger cars

from stoves or furnaces inside or suspended from the cars. 237

Statutory Liabilities and Penalties Applicable to Railroads.—A statute making the initial carrier, 238 or the connecting

or delivering carrier, 239 liable to the shipper for the nondelivery of

goods is not unconstitutional; nor is a law which provides that a

railroad shall be responsible in damages to the owner of property

injured by fire communicated by its locomotive engines and which

grants the railroad an insurable interest in such property along its

route and authority to procure insurance against such liability. 240

Equally consistent with the requirements of due process are the following two enactments: the first, imposing on all common carriers

a penalty for failure to settle within a reasonable specified period

claims for freight lost or damaged in shipment and conditioning

payment of that penalty upon recovery by the claimant in a subsequent suit of more than the amount tendered, 241 and the second,

levying double damages and an attorney’s fee upon a railroad for

failure to pay within a reasonable time after demand the amount

claimed by an owner for stock injured or killed. However, the Court

subsequently limited its approval of the latter statute to cases in

which the plaintiff had not demanded more than he recovered in

court; 242 when the penalty is exacted in a case in which the plaintiff initially demanded more than he sued for and recovered, a defendant railroad is arbitrarily deprived of its property for refusing

to meet the initial excessive demand. 243

Also invalidated during this period of heightened judicial scrutiny was a penalty imposed on a carrier that had collected transportation charges in excess of established maximum rates; the penalty of $500 liquidated damages plus a reasonable attorney’s fee
1614 AMENDMENT 14—RIGHTS GUARANTEED

244Missouri Pacific Ry. v. Tucker, 230 U.S. 340 (1913). 245St. Louis, I. Mt. & So. Ry. v. Williams, 251 U.S. 63, 67 (1919). 246Missouri Pacific Ry. v. Humes, 115 U.S. 512 (1885); Minneapolis Ry. v.

Beckwith, 129 U.S. 26 (1889). 247 Chicago, B. & Q. R.R. v. Cram, 228 U.S. 70 (1913). 248Southwestern Tel. Co. v. Danaher, 238 U.S. 482 (1915). 1 New Orleans Debenture Redemption Co. v. Louisiana, 180 U.S. 320 (1901).

was disproportionate to actual damages and was exacted under

conditions not affording the carrier an adequate opportunity to

safely test the validity of the rates before liability attached. 244

Where the carrier did have an opportunity to test the reasonableness of the rate, however, and collection of an overcharge did not

proceed from any belief that the rate was invalid, the Court indicated that the validity of the penalty imposed need not be tested

by comparison with the amount of the overcharge. Inasmuch as a

penalty is imposed as punishment for violation of law, the legislature may adjust its amount to the public wrong rather than the

private injury, and the only limitation which the Fourteenth

Amendment imposes is that the penalty prescribed shall not be ‘‘so

severe and oppressive as to be wholly disproportioned to the offense

and obviously unreasonable.’’ In accordance with the latter standard, a statute granting an aggrieved passenger (who recovered

$100 for an overcharge of 60 cents) the right to recover in a civil

suit not less than $50 nor more than $300 plus costs and a reasonable attorney’s fee was upheld. 245

For like reasons, the Court also upheld a statute requiring railroads to erect and maintain fences and cattle guards, and making

them liable in double the amount of damages for their failure to

so maintain them, 246 and another law that established a minimum

rate of speed for delivery of livestock and that required every carrier violating the requirement to pay the owner of the livestock the

sum of $10 per car per hour. 247 On the other hand, the Court

struck down as arbitrary and oppressive assessment of fines of

$100 per day (and aggregating $3,600) on a telephone company

that, in accordance with its established and uncontested regulations, suspended the service of a patron in arrears. 248

Regulation of Corporations, Business, Professions, and

Trades

Corporations.—Although a corporation is the creation of a

State, which reserves the power to amend or repeal corporate charters, the retention of such power will not support the taking of corporate property without due process of law. To terminate the life

of a corporation by annulling its charter is not to confiscate its

property but to turn it over to the stockholders after liquidation. 1
AMENDMENT 14—RIGHTS GUARANTEED 1615

2 National Council U.A.M. v. State Council, 203 U.S. 151, 162–63 (1906).

3Munday v. Wisconsin Trust Co., 252 U.S. 499 (1920).

4State Farm Ins. Co. v. Duel, 324 U.S. 154 (1945).

5Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954).

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

7 Nebbia v. New York, 291 U.S. 502, 527–28 (1934). See also New Motor Vehicle

Bd. v. Orrin W. Fox Co., 439 U.S. 96, 106–08 (1978) (upholding regulation of franchise relationship).

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

which the due process clause affords, but such protection does not

entitle them to the unconditional right to enter another State or,

once having been permitted to enter, to continue to do business

therein. There is language in the early cases suggesting that the

power of a State to exclude or to expel a foreign corporation is almost plenary. 2 While modern doctrines of the ‘‘negative’’ commerce

clause constrain states’ authority to discriminate against foreign

corporations in favor of local commerce, it has always been acknowledged that states may subject corporate entry or continued

operation to reasonable, non-discriminatory conditions. Thus, a

state law which requires the filing of articles with a local official

as a condition prerequisite to the validity of conveyances of local

realty to such corporations is not violative of due process. 3 Also

valid are statutes which require a foreign insurance company, as

part of the price of entry, to maintain reserves computed by a specific percentage of premiums, including membership fees, received

in all States, 4 or to consent to direct actions filed against it by persons injured in the State by tort-feasors whom it insures. 5 Similarly a statute requiring corporations to dispose of farm land not

necessary to the conduct of their business was not invalid as applied to a foreign hospital corporation, even though the latter, because of changed economic conditions, was unable to recoup its

original investment from the sale which it is thus compelled to

make. 6

Business in General.—‘‘The Constitution does not guarantee

the unrestricted privilege to engage in a business or to conduct it

as one pleases. Certain kinds of business may be prohibited; and

the right to conduct a business, or to pursue a calling, may be conditioned. . . . Statutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they

do enter into agreements, are within the State’s competency.’’ 7

Laws Prohibiting Trusts, Discrimination, Restraint of

Trade.—Even during the period when the Court was measuring

statutes by substantive due process liberty of contract principles, it

recognized the right of states to limit liberty of contract by prohibiting combinations in restraint of trade. Thus, states could prohibit
1616 AMENDMENT 14—RIGHTS GUARANTEED

8Smiley v. Kansas, 196 U.S. 447 (1905). See Waters Pierce Oil Co. v. Texas, 212

U.S. 86 (1909); National Cotton Oil Co. v. Texas, 197 U.S. 115 (1905), also upholding antitrust laws. 9 International Harvester Co. v. Missouri, 234 U.S. 199 (1914). See also American Machine Co. v. Kentucky, 236 U.S. 660 (1915). 10Grenada Lumber Co. v. Mississippi, 217 U.S. 433 (1910). 11 Aikens v. Wisconsin, 195 U.S. 194 (1904). 12 Central Lumber Co. v. South Dakota, 226 U.S. 157 (1912). But cf. Fairmont

Co. v. Minnesota, 274 U.S. 1 (1927) (invalidating on liberty of contract grounds similar statute punishing dealers in cream who pay higher prices in one locality than

in another, the Court finding no reasonable relation between the statute’s sanctions

and the anticipated evil). 13Old Dearborn Co. v. Seagram Corp., 299 U.S. 183 (1936); Pep Boys v. Pyroil,

299 U.S. 198 (1936). 14Safeway Stores v. Oklahoma Grocers, 360 U.S. 334 (1959).

agreements to pool and fix prices, divide net earnings, and prevent

competition in the purchase and sale of grain. 8 Nor, the Court

held, does the Fourteenth Amendment preclude a State from adopting a policy against all combinations of competing corporations and

enforcing it even against combinations which may have been induced by good intentions and from which benefit and no injury may

have resulted. 9 Also upheld were a statute that prohibited retail

lumber dealers from uniting in an agreement not to purchase materials from wholesalers selling directly to consumers in the retailers’

localities, 10 and another law punishing combinations for ‘‘maliciously’’ injuring a rival in the same business, profession, or

trade. 11

Similarly, a prohibition of unfair discrimination for the purpose of intentionally destroying competition of any other regular

dealer in the same commodity by making sales thereof at a lower

rate in one section of the State than in another, after equalization

for distance, effects no invalid deprivation of property or interference with freedom of contract. 12 A law sanctioning contracts requiring that commodities identified by trademark will not be sold

by the vendee or subsequent vendees except at prices stipulated by

the original vendor does not violate the due process clause. 13 Also

upheld as not depriving a company of due process was application

of an unfair sales act to enjoin a retail grocery company from selling below statutory cost in violation of a state unfair sales act, even

though its competitors were selling at unlawful prices. There is no

constitutional right to employ retaliation against action outlawed

by a State, and appellant had available a remedy whereby it could

enjoin illegal activity of its competitors. 14

Laws Preventing Fraud in Sale of Goods and Securities.—Laws and ordinances tending to prevent frauds and requiring honest weights and measures in the sale of articles of general

consumption have long been considered lawful exertions of the po-
AMENDMENT 14—RIGHTS GUARANTEED 1617

15Schmidinger v. City of Chicago, 226 U.S. 578, 588 (1913) (citing McLean v.

Arkansas, 211 U.S. 539, 550 (1909)). 16Merchants Exchange v. Missouri, 248 U.S. 365 (1919). 17 Hauge v. City of Chicago, 299 U.S. 387 (1937). 18Lemieux v. Young, 211 U.S. 489 (1909); Kidd, Dater Co. v. Musselman Grocer

Co., 217 U.S. 461 (1910). 19Pacific States Co. v. White, 296 U.S. 176 (1935). 20Schmidinger v. City of Chicago, 226 U.S. 578 (1913). 21Petersen Baking Co. v. Bryan, 290 U.S. 570 (1934) (tolerances not to exceed

three ounces to a pound of bread and requiring that the bread maintain the statutory minimum weight for not less than 12 hours after cooling). But cf. Burns Baking

Co. v. Bryan, 264 U.S. 504 (1924) (tolerance of only two ounces in excess of the minimum weight per loaf is unreasonable, given finding that it was impossible to manufacture good bread without frequently exceeding the prescribed tolerance). 22 Armor & Co. v. North Dakota, 240 U.S. 510 (1916). 23 Heath & Milligan Co. v. Worst, 207 U.S. 338 (1907); Corn Products Ref. Co.

v. Eddy, 249 U.S. 427 (1919); National Fertilizer Ass’n v. Bradley, 301 U.S. 178

(1937).

lice power. 15 Thus, a prohibition on the issuance or sale by other

than an authorized weigher of any weight certificate for grain

weighed at any warehouse or elevator where state weighers are

stationed is not unconstitutional. 16 Nor is a municipal ordinance

requiring that commodities sold in load lots by weight be weighed

by a public weighmaster within the city invalid as applied to one

delivering coal from state-tested scales at a mine outside the city. 17

A statute requiring merchants to record sales in bulk not made in

the regular course of business is also within the police power. 18

Similarly, the power of a State to prescribe standard containers to protect buyers from deception as well as to facilitate trading

and to preserve the condition of the merchandise is not open to

question. Accordingly, an administrative order issued pursuant to

an authorizing statute and prescribing the dimensions, form, and

capacity of containers for strawberries and raspberries is not arbitrary inasmuch as the form and dimensions bore a reasonable relation to the protection of the buyers and the preservation in transit

of the fruit. 19 Similarly, an ordinance fixing standard sizes is not

unconstitutional. 20 Regulations issued in furtherance of a statutory

authorization which imposed a rate of tolerance for the minimum

weight for a loaf of bread were upheld. 21 Likewise, a law requiring

that lard not sold in bulk should be put up in containers holding

one, three, or five pounds weight, or some whole multiple of these

numbers, does not deprive sellers of their property without due

process of law. 22

The right of a manufacturer to maintain secrecy as to his compounds and processes must be held subject to the right of the

State, in the exercise of the police power and in the promotion of

fair dealing, to require that the nature of the product be fairly set

forth. 23
1618 AMENDMENT 14—RIGHTS GUARANTEED

24 Advance-Rumely Co. v. Jackson, 287 U.S. 283 (1932). 25 Rast v. Van Deman & Lewis, 240 U.S. 342 (1916); Tanner v. Little, 240 U.S.

369 (1916); Pitney v. Washington, 240 U.S. 387 (1916). 26 Hall v. Geiger-Jones Co., 242 U.S. 539 (1917); Caldwell v. Sioux Falls Stock

Yards Co., 242 U.S. 559 (1917); Merrick v. Halsey & Co., 242 U.S. 568 (1917). 27 Booth v. Illinois, 184 U.S. 425 (1902). 28Otis v. Parker, 187 U.S. 606 (1903). 29 Brodnax v. Missouri, 219 U.S. 285 (1911). 30 House v. Mayes, 219 U.S. 270 (1911). 31 Noble State Bank v. Haskell, 219 U.S. 104 (1911); Shallenberger v. First

State Bank, 219 U.S. 114 (1911); Assaria State Bank v. Dolley, 219 U.S. 121 (1911);

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

A statute providing that the purchaser of harvesting or threshing machinery for his own use shall have a reasonable time after

delivery for inspecting and testing it, and permitting recission of

the contract if the machinery does not prove reasonably adequate,

and further declaring any agreement contrary to its provisions to

be against public policy and void, does not violate the due process

clause. 24 A prohibitive license fee upon the use of trading stamps

is not unconstitutional. 25

In the exercise of its power to prevent fraud and imposition,

a State may regulate trading in securities within its borders, require a license of those engaging in such dealing, make issuance

of a license dependent on a public officer’s being satisfied of the

good repute of the applicants, and permit the officer, subject to judicial review of his findings, to revoke the license. 26 A State may

forbid the giving of options to sell or buy at a future time any grain

or other commodity. 27 It may also forbid sales on margin for future

delivery, 28 and may prohibit the keeping of places where stocks,

grain, and the like, are sold but not paid for at the time, unless

a record of the same be made and a stamp tax paid. 29 Making

criminal any deduction by the purchaser from the actual weight of

grain, hay, seed, or coal under a claim of right by reason of any

custom or rule of a board of trade is valid exercise of the police

power and does not deprive the purchaser of his property without

due process of law nor interfere with his liberty of contract. 30

Banking, Wage Assignments and Garnishment.—Regulation of banks and banking has always been considered well within

the police power of states, and the Fourteenth Amendment did not

eliminate this regulatory authority. A variety of regulations has

been upheld over the years. For example, state banks are not deprived of property without due process by a statute subjecting them

to assessments for a depositors’ guaranty fund. 31 Also, a law requiring savings banks to turn over to the State deposits inactive

for thirty years (when the depositor cannot be found), with provision for payment to the depositor or his heirs on establishment of
AMENDMENT 14—RIGHTS GUARANTEED 1619

32Provident 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). 33Doty v. Love, 295 U.S. 64 (1935). 34Farmers Bank v. Federal Reserve Bank, 262 U.S. 649 (1923). 35Griffith v. Connecticut, 218 U.S. 563 (1910). 36Mutual Loan Co. v. Martell, 222 U.S. 225 (1911). 37La Tourette v. McMaster, 248 U.S. 465 (1919); Stipich v. Insurance Co., 277

U.S. 311, 320 (1928). 38German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914). 39O’Gorman & Young v. Hartford Ins. Co., 282 U.S. 251 (1931).

the right, does not effect an invalid taking of the property of said

banks; nor does a statute requiring banks to turn over to the protective custody of the State deposits that have been inactive ten or

twenty-five years (depending on the nature of the deposit). 32

The constitutional rights of creditors in an insolvent bank in

the hands of liquidators are not violated by a later statute permitting re-opening under a reorganization plan approved by the court,

the liquidating officer, and by three-fourths of the creditors. 33

Similarly, a Federal Reserve bank is not unlawfully deprived of

business rights of liberty of contract by a law which allows state

banks to pay checks in exchange when presented by or through a

Federal Reserve bank, post office, or express company and when

not made payable otherwise by a maker. 34

In fixing maximum rates of interest on money loaned within

its borders, a State is acting clearly within its police power; and the

details are within legislative discretion if not unreasonably or arbitrarily exercised. 35 Equally valid as an exercise of a State’s police

power is a requirement that assignments of future wages as security for debts of less than $200, to be valid, must be accepted in

writing by the employer, consented to by the assignors, and filed

in public office. Such a requirement deprives neither the borrower

nor the lender of his property without due process of law. 36

Insurance.—The general relations of those engaged in the insurance business 37 as well as the business itself have been peculiarly subject to supervision and control. 38 Even during the

Lochner era the Court recognized that government may fix insurance rates and regulate the compensation of insurance agents, 39

and over the years the Court has upheld a wide variety of regulation. A state may impose a fine on ‘‘any person ‘who shall act in

any manner in the negotiation or transaction of unlawful insurance
1620 AMENDMENT 14—RIGHTS GUARANTEED

40 Nutting v. Massachusetts, 183 U.S. 553, 556 (1902) (distinguishing Allgeyer

v. Louisiana, 165 U.S. 578 (1897)). See also Hoper v. California, 155 U.S. 648 (1895). 41Daniel v. Family Ins. Co., 336 U.S. 220 (1949). 42Osborn v. Ozlin, 310 U.S. 53, 68–69 (1940). Dissenting from the conclusion,

Justice Roberts declared that the plain effect of the Virginia law is to compel a nonresident to pay a Virginia resident for services which the latter does not in fact

render. 43 California Auto. Ass’n v. Maloney, 341 U.S. 105 (1951). 44 Allgeyer v. Louisiana, 165 U.S. 578 (1897). 45 New York Life Ins. Co. v. Dodge, 246 U.S. 357 (1918). 46 National Ins. Co. v. Wanberg, 260 U.S. 71 (1922).

. . . with a foreign insurance company not admitted to do business

[within said State].’ ’’ 40 A state may forbid life insurance companies

and their agents to engage in the undertaking business and undertakers to serve as life insurance agents. 41 Foreign casualty and

surety insurers were not deprived of due process, the Court held,

by a Virginia law which prohibited the making of contracts of casualty or surety insurance except through registered agents, which

required that such contracts applicable to persons or property in

the State be countersigned by a registered local agent, and which

prohibited such agents from sharing more than 50% of a commission with a nonresident broker. 42 And just as all banks may be required to contribute to a depositors’ guaranty fund, so may all

automobile liability insurers be required to submit to the equitable

apportionment among them of applicants who are in good faith entitled to, but are financially unable to, procure such insurance

through ordinary methods. 43

However, a statute which prohibited the insured from contracting directly with a marine insurance company outside the State for

coverage of property within the State was held invalid as a deprivation of liberty without due process of law. 44 For the same reason,

the Court held, a State may not prevent a citizen from concluding

a policy loan agreement with a foreign life insurance company at

its home office whereby the policy on his life is pledged as collateral security for a cash loan to become due upon default in payment of premiums, in which case the entire policy reserve might

be applied to discharge the indebtedness. Authority to subject such

an agreement to the conflicting provisions of domestic law is not

deducible from the power of a State to license a foreign insurance

company as a condition of its doing business therein. 45

A stipulation that policies of hail insurance shall take effect

and become binding twenty-four hours after the hour in which an

application is taken and further requiring notice by telegram of rejection of an application was upheld. 46 No unconstitutional restraint was imposed upon the liberty of contract of surety companies by a statute providing that, after enactment, any bond exe-
AMENDMENT 14—RIGHTS GUARANTEED 1621

47 Hartford Accident Co. v. Nelson Co., 291 U.S. 352 (1934). 48Merchants Liability Co. v. Smart, 267 U.S. 126 (1925). 49Orient Ins. Co. v. Daggs, 172 U.S. 577 (1899) (the statute was in effect when

the contract at issue was signed). 50 Hooperston Co. v. Cullen, 318 U.S. 313 (1943). 51German Alliance Ins. Co. v. Hale, 219 U.S. 307 (1911). See also Carroll v.

Greenwich Ins. Co., 199 U.S. 401 (1905). 52Life & Casualty Co. v. McCray, 291 U.S. 566 (1934). 53 Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243 (1906). 54Whitfield v. Aetna Life Ins. Co., 205 U.S. 489 (1907).

cuted for the faithful performance of a building contract shall inure

to the benefit of materialmen and laborers, notwithstanding any

provision of the bond to the contrary. 47 Likewise constitutional was

a law requiring that a motor vehicle liability policy shall provide

that bankruptcy of the insured does not release the insurer from

liability to an injured person. 48

There also is no denial of due process for a state to require

that casualty companies, in case of total loss, pay the total amount

for which the property was insured, less depreciation between the

time of issuing the policy and the time of the loss, rather than the

actual cash value of the property at the time of loss. 49

Moreover, even though it had its attorney-in-fact located in Illinois, signed all its contracts there, and forwarded therefrom all

checks in payment of losses, a reciprocal insurance association covering real property located in New York could be compelled to comply with New York regulations which required maintenance of an

office in that State and the countersigning of policies by an agent

resident therein. 50 Also, to discourage monopolies and to encourage

rate competition, a State constitutionally may impose on all fire insurance companies connected with a tariff association fixing rates

a liability or penalty to be collected by the insured of 25% in excess

of actual loss or damage, stipulations in the insurance contract to

the contrary notwithstanding. 51

A state statute by which a life insurance company, if it fails

to pay upon demand the amount due under a policy after death of

the insured, is made liable in addition for fixed damages, reasonable in amount, and for a reasonable attorney’s fee is not unconstitutional even though payment is resisted in good faith and upon

reasonable grounds. 52 It is also proper by law to cut off a defense

by a life insurance company based on false and fraudulent statements in the application, unless the matter misrepresented actually contributed to the death of the insured. 53 A provision that suicide, unless contemplated when the application for a policy was

made, shall be no defense is equally valid. 54 When a cooperative

life insurance association is reorganized so as to permit it to do a

life insurance business of every kind, policyholders are not deprived
1622 AMENDMENT 14—RIGHTS GUARANTEED

55Polk v. Mutual Reserve Fund, 207 U.S. 310 (1907). 56 Neblett v. Carpenter, 305 U.S. 297 (1938). 57 Brazee v. Michigan, 241 U.S. 340 (1916). With four Justices dissenting, the

Court in Adams v. Tanner, 244 U.S. 590 (1917), struck down a state law absolutely

prohibiting maintenance of private employment agencies. Commenting on the ‘‘constitutional philosophy’’ thereof in Lincoln Federal Labor Union v. Northwestern Iron

& Metal Co., 335 U.S. 525, 535 (1949), Justice Black stated that Olsen v. Nebraska,

313 U.S. 236 (1941), ‘‘clearly undermined Adams v. Tanner.’’ 58Ferguson v. Skrupa, 372 U.S. 726 (1963). 59 North Dakota State Bd. of Pharmacy v. Snyder’s Drug Stores, 414 U.S. 156

(1973). In the course of the decision, the Court overruled Liggett Co. v. Baldridge,

278 U.S. 105 (1928), in which it had voided a law forbidding a corporation to own

any drug store, unless all its stockholders were licensed pharmacists, as applied to

a foreign corporation, all of whose stockholders were not pharmacists, which sought

to extend its business in the State by acquiring and operating therein two additional

stores.

of their property without due process of law. 55 Similarly, when the

method of liquidation provided by a plan of rehabilitation of a mutual life insurance company is as favorable to dissenting policyholders as would have been the sale of assets and pro rata distribution to all creditors, the dissenters are unable to show any taking

without due process. Dissenting policyholders have no constitutional right to a particular form of remedy. 56

Miscellaneous Businesses and Professions.—An act imposing license fees for operating employment agencies and prohibiting

them from sending applicants to an employer who has not applied

for labor does not deny due process of law. 57 Also, a state law prohibiting operation of a ‘‘debt pooling’’ or a ‘‘debt adjustment’’ business except as an incident to the legitimate practice of law is a

valid exercise of legislative discretion. 58

The Court has sustained a law establishing as a qualification

for obtaining or retaining a pharmacy operating permit that one either be a registered pharmacist in good standing or that the corporation or association have a majority of its stock owned by registered pharmacists in good standing who were actively and regularly employed in and responsible for the management, supervision, and operation of such pharmacy. 59 The Court also upheld

a state law forbidding (1) solicitation of the sale of frames, mountings, or other optical appliances, (2) solicitation of the sale of eyeglasses, lenses, or prisms by use of advertising media, (3) retailers

from leasing, or otherwise permitting anyone purporting to do eye

examinations or visual care to occupy space in a retail store, and

(4) anyone, such as an optician, to fit lenses, or replace lenses or

other optical appliances, except upon written prescription of an optometrist or opthalmologist licensed in the State is not invalid. A

State may treat all who deal with the human eye as members of

a profession that should refrain from merchandising methods to ob-
AMENDMENT 14—RIGHTS GUARANTEED 1623

60Williamson v. Lee Optical Co., 348 U.S. 483 (1955). 61McNaughton v. Johnson, 242 U.S. 344, 349 (1917). See also Dent v. West Virginia, 129 U.S. 114 (1889); Hawker v. New York, 170 U.S. 189 (1898); Reetz v.

Michigan, 188 U.S. 505 (1903); Watson v. Maryland, 218 U.S. 173 (1910); Barsky

v. Board of Regents, 347 U.S. 442 (1954) sustaining a New York law authorizing

suspension for six months of the license of a physician who had been convicted of

crime in any jurisdiction, in this instance, contempt of Congress under 2 U.S.C.

§ 192. Three Justices, Black, Douglas, and Frankfurter, dissented. 62 Collins v. Texas, 223 U.S. 288 (1912); Hayman v. Galveston, 273 U.S. 414

(1927). 63Semler 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). 64Olsen v. Smith, 195 U.S. 332 (1904). 65 Nashville, C. & St. L. R.R. v. Alabama, 128 U.S. 96 (1888). 66Smith 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. 67Western Turf Ass’n v. Greenberg, 204 U.S. 359 (1907). 68W.W. Cargill Co. v. Minnesota, 180 U.S. 452 (1901). 69Lehon v. Atlanta, 242 U.S. 53 (1916). 70Gundling v. Chicago, 177 U.S. 183, 185 (1900). 71 Bourjois, Inc. v. Chapman, 301 U.S. 183 (1937). 72Weller v. New York, 268 U.S. 319 (1925). 73Packer Corp. v. Utah, 285 U.S. 105 (1932).

tain customers, and that should choose locations that reduce the

temptations of commercialism; a state may also conclude that eye

examinations are so critical that every change in frame and duplication of a lens should be accompanied by a prescription. 60

The practice of medicine, using this word in its most general

sense, has long been the subject of regulation. 61 A State may exclude osteopathic physicians from hospitals maintained by it or its

municipalities, 62 may regulate the practice of dentistry by prescribing qualifications that are reasonably necessary, requiring licenses,

establishing a supervisory administrative board, and prohibiting

certain advertising regardless of its truthfulness. 63 But while statutes requiring pilots to be licensed 64 and setting reasonable competency standards (e.g., that railroad engineers pass color blindness tests) have been sustained, 65 an act making it a misdemeanor

for a person to act as a railway passenger conductor without having had two years’ experience as a freight conductor or brakeman

was invalidated as not rationally distinguishing between those

competent and those not competent to serve as conductor. 66

The Court has also upheld a variety of other licensing or regulatory legislation applicable to places of amusement, 67 grain elevators, 68 detective agencies, 69 the sale of cigarettes 70 or cosmetics, 71 and the resale of theatre tickets. 72 Restrictions on advertising have also been upheld, including absolute bans on the advertising of cigarettes, 73 or the use of a representation of the United
1624 AMENDMENT 14—RIGHTS GUARANTEED

74 Halter v. Nebraska, 205 U.S. 34 (1907). 75McCloskey v. Tobin, 252 U.S. 107 (1920). 76 Natal v. Louisiana, 139 U.S. 621 (1891). 77Murphy v. California, 225 U.S. 623 (1912). 78 Rosenthal v. New York, 226 U.S. 260 (1912). 79Thompson v. Consolidated Gas Co., 300 U.S. 55, 76–77 (1937) (citing Ohio Oil

Co. v. Indiana (No. 1), 177 U.S. 190 (1900)); Lindsley v. Natural Carbonic Gas Co.,

220 U.S. 61 (1911); Oklahoma v. Kansas Natural Gas Co., 221 U.S. 229 (1911). 80 Champlin Ref. Co. v. Corporation Comm’n, 286 U.S. 210 (1932). 81 Railroad Comm’n v. Rowan & Nichols Oil Co., 310 U.S. 573 (1940). See also

Railroad Comm’n v. Rowan & Nichols Oil Co., 311 U.S. 570 (1941); Railroad

Comm’n v. Humble Oil & Ref. Co., 311 U.S. 578 (1941).

States flag on an advertising medium. 74 Similarly constitutional

were prohibitions on the solicitation by a layman of the business

of collecting and adjusting claims, 75 the keeping of private markets

within six squares of a public market, 76 the keeping of billiard

halls except in hotels, 77 or the purchase by junk dealers of wire,

copper, and other items, without ascertaining the seller’s right to

sell. 78

Protection of State Resources

Oil and Gas.—To prevent waste, production of oil and gas

may be prorated; the prohibition of wasteful conduct, whether primarily in behalf of the owners of oil and gas in a common reservoir

or because of the public interests involved, is consistent with the

Constitution. 79 Thus, the Court upheld against due process challenge a statute which defined waste as including, in addition to its

ordinary meaning, economic waste, surface waste, and production

in excess of transportation or marketing facilities or reasonable

market demands, and which limited each producer’s share to a prorated portion of the total production that can be taken from the

common source without waste. 80 Whether a system of proration

based on hourly potential is as fair as one based upon estimated

recoverable reserves or some other combination of factors is a question for administrative and not judicial judgment. In a domain of

knowledge still shifting and growing, it has been held to be presumptuous for courts, on the basis of conflicting expert testimony,

to invalidate an oil proration order, promulgated by an administrative commission in execution of a regulatory scheme intended to

conserve a State’s oil resources. 81 On the other hand, where the

evidence showed that an order, purporting to limit daily total production of a gas field and to prorate the allowed production among

several wells, had for its real purpose, not the prevention of waste

nor the undue drainage from the reserves of other well owners, but

rather the compelling of pipeline owners to furnish a market to

those who had no pipeline connections, the order was held void as
AMENDMENT 14—RIGHTS GUARANTEED 1625

82Thompson v. Consolidated Gas Co., 300 U.S. 55 (1937). 83 Cities Service Co. v. Peerless Co., 340 U.S. 179 (1950); Phillips Petroleum Co.

v. Oklahoma, 340 U.S. 190 (1950). 84Walls v. Midland Carbon Co., 254 U.S. 300 (1920). See also Henderson Co.

v. Thompson, 300 U.S. 258 (1937). 85 Bandini Co. v. Superior Court, 284 U.S. 8 (1931). 86Gant v. Oklahoma City, 289 U.S. 98 (1933). 87Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). On the ‘‘taking’’ jurisprudence that has stemmed from this case, see supra, pp. 1382–84.

a taking of private property for private benefit. 82 Also sustained as

conservation measures were orders of the Oklahoma Corporation

Commission, premised on a finding that existing low field prices for

natural gas were resulting in economic and physical waste, fixing

a minimum price for gas and requiring one producer to take gas

ratably from another producer in the same field at the dictated

price. 83

Even though carbon black is more valuable than the gas from

which it is extracted, and notwithstanding a resulting loss of investment in a plant for the manufacture of carbon black, a State,

in the exercise of its police power, may forbid the use of natural

gas for products, such as carbon black, in the production of which

such gas is burned without fully utilizing for other manufacturing

or domestic purposes the heat therein contained. 84 Likewise, for

the purpose of regulating and adjusting coexisting rights of surface

owners to underlying oil and gas, it is within the power of a State

to prohibit the operators of wells from allowing natural gas, not

conveniently necessary for other purposes, to come to the surface

without the lifting power having been utilized to produce the greatest quality of oil in proportion. 85

Protection of Property and Agricultural Crops.—An ordinance conditioning the right to drill for oil and gas within the city

limits upon the filing of a bond in the sum of $200,000 for each

well, to secure payment of damages from injuries to any persons

or property resulting from the drilling operation, or maintenance of

any well or structure appurtenant thereto, is consistent with due

process of law and is not rendered unreasonable by the requirement that the bond be executed, not by personal sureties, but by

a bonding company authorized to do business in the State. 86 On

the other hand, a Pennsylvania statute, which forbade the mining

of coal under private dwellings or streets of cities by a grantor that

had reserved the right to mine, was viewed as restricting the use

of private property too much and hence as a denial of due process

and a ‘‘taking’’ without compensation. 87 Years later, however, a

quite similar Pennsylvania statute was upheld, the Court finding

that the new law no longer involved merely a balancing of private
1626 AMENDMENT 14—RIGHTS GUARANTEED

88Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 488 (1987).

The Court in Pennsylvania Coal had viewed that case as one of ‘‘a single private

house.’’ 260 U.S. at 413. 89Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962). 90Miller v. Schoene, 276 U.S. 272, 277, 279 (1928). 91Sligh v. Kirkwood, 237 U.S. 52 (1915). 92 Hudson Water Co. v. McCarter, 209 U.S. 349, 356–57 (1908). 93Sporhase 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). 94See, 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).

economic interests, but instead promoted such ‘‘important public

interests’’ as conservation, protection of water supplies, and preservation of land values for taxation. 88 Also distinguished from Pennsylvania Coal was a challenge to an ordinance prohibiting sand and

gravel excavation near the water table and imposing a duty to refill

any existing excavation below that level. The ordinance was

upheld; the fact that it prohibited a business that had been conducted for over 30 years did not give rise to a taking in the absence

of proof that the land could not be used for other legitimate purposes. 89

A statute requiring the destruction of cedar trees within two

miles of apple orchards in order to prevent damage to the orchards

caused by cedar rust was upheld as not unreasonable even in the

absence of compensation. Apple growing being one of the principal

agricultural pursuits in Virginia and the value of cedar trees

throughout the State being small as compared with that of apple

orchards, the State was constitutionally competent to require the

destruction of one class of property in order to save another which,

in the judgment of its legislature, was of greater value to the public. 90 Similarly, Florida was held to possess constitutional authority to protect the reputation of one of its major industries by penalizing the delivery for shipment in interstate commerce of citrus

fruits so immature as to be unfit for consumption. 91

Water.—A statute making it unlawful for a riparian owner to

divert water into another State was held not to deprive the owner

of property without due process of law. ‘‘The constitutional power

of the State to insist that its natural advantages shall remain

unimpaired by its citizens is not dependent upon any nice estimate

of the extent of present use or speculation as to future needs. . . .

What it has it may keep and give no one a reason for its will.’’ 92

This holding has since been disapproved, but on interstate commerce rather than due process grounds. 93 States may, however,

enact and enforce a variety of conservation measures for the protection of watersheds. 94
AMENDMENT 14—RIGHTS GUARANTEED 1627

95 Bayside Fish Co. v. Gentry, 297 U.S. 422, 426 (1936). 96Manchester v. Massachusetts, 139 U.S. 240 (1891); Geer v. Connecticut, 161

U.S. 519 (1896). 97Miller v. McLaughlin, 281 U.S. 261, 264 (1930). 98 Bayside Fish Co. v. Gentry, 297 U.S. 422 (1936). See also New York ex rel.

Silz v. Hesterberg, 211 U.S. 31 (1908) (upholding law proscribing possession during

the closed season of game imported from abroad). 99See, e.g., Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928) (invalidating Louisiana statute prohibiting transportation outside the state of shrimp taken

in state waters, unless the head and shell had first been removed); Toomer v.

Witsell, 334 U.S. 385 (1948) (invalidating law discriminating against out-of-state

commercial fishermen); Douglas v. Seacoast Products, 431 U.S. 265, 284 (1977)

(state could not discriminate in favor of its residents against out-of-state fishermen

in federally licensed ships). 100 441 U.S. 322 (1979) (formally overruling Geer). 101 Id. at 336, 338–39. 102 Baldwin v. Montana Fish and Game Comm’n, 436 U.S. 371 (1978).

Fish and Game.—A State has sufficient control over fish and

wild game found within its boundaries 95 that it may regulate or

prohibit fishing and hunting. 96 For the effective enforcement of

such restrictions, a state may also forbid the possession within its

borders of special instruments of violations, such as nets, traps,

and seines, regardless of the time of acquisition or the protestations of lawful intentions on the part of a particular possessor. 97

The Court also upheld a state law, designed to conserve for food

fish found within its waters, restricting a commercial reduction

plant from accepting more fish than it could process without deterioration, waste, or spoilage, and applying such restriction to fish

imported into the State. 98

The Court’s early decisions rested on the legal fiction that

states owned the fish and wild game within their borders, hence

could reserve these possessions solely for use by their own citizens.

The Court soon backed away from the ownership fiction, 99 and in

Hughes v. Oklahoma 100 overruled Geer v. Connecticut, indicating

instead that state conservation measures discriminating against

out-of-state persons were to be measured under the commerce

clause. Although a state’s ‘‘concerns for conservation and protection

of wild animals’’ were still a ‘‘legitimate’’ basis for regulation, these

concerns could not justify disproportionate burdens on interstate

commerce. 101 More recently still, in the context of recreational

rather than commercial activity, the Court reached a result more

deferential to state authority, holding that access to recreational

big game hunting is not within the category of rights protected by

the Privileges and Immunitites Clause, and that consequently a

state could without differential cost justification charge out-ofstaters significantly more than in-staters for a hunting license. 102

Suffice it to say that similar cases involving a state’s efforts to reserve its fish and game for its own inhabitants are likely to be
1628 AMENDMENT 14—RIGHTS GUARANTEED

103 Reinman v. City of Little Rock, 237 U.S. 171 (1915) (location of a livery stable within a thickly populated city ‘‘is well within the range of the power of the state

to legislate for the health and general welfare’’). See also Fischer v. St. Louis, 194

U.S. 361 (1904) (upholding restriction on location of dairy cow stables); Bacon v.

Walker, 204 U.S. 311 (1907) (upholding restriction on grazing of sheep near habitations). 104 Northwestern Laundry v. Des Moines, 239 U.S. 486 (1916). For a case embracing a rather special set of facts, see Dobbins v. Los Angeles, 195 U.S. 223 (1904). 105 Hadacheck v. Sebastian, 239 U.S. 394 (1915). 106 Cf. Developments in the Law-Zoning, 91 HARV. L. REV. 1427 (1978). 107 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Zahn v. Board

of Pub. Works, 274 U.S. 325 (1927); Nectow v. City of Cambridge, 277 U.S. 183

(1928); Cusack Co. v. City of Chicago, 242 U.S. 526 (1917); St. Louis Poster Adv.

Co. v. City of St. Louis, 249 U.S. 269 (1919).

challenged under commerce or privileges and immunities principles, rather than under substantive due process.

Ownership of Real Property: Limitations, Rights

Zoning and Similar Actions.—That states and municipal

subdivisions may zone land for designated uses is now a well established aspect of the police power. Zoning authority gained judicial

recognition early in the 20th century. Initially, analogy was drawn

to public nuisance law, the Court recognizing that States and their

municipal subdivisions may declare that in particular circumstances and in particular localities specific businesses, which

are not nuisances per se, are to be deemed nuisances in fact and

in law. 103 Thus, a State may declare the emission of dense smoke

in populous areas a nuisance and restrain it; regulations to that effect are not invalid even though they affect the use of property or

subject the owner to the expense of complying with their terms. 104

So too, the Court upheld an ordinance that prohibited brickmaking

in a designated area, even though the land contained valuable clay

deposits which could not profitably be removed for processing elsewhere, was far more valuable for brickmaking than for any other

purpose, had been acquired before it was annexed to the municipality, and had long been used as a brickyard. 105

With increasing urbanization and consequent broadening of

the philosophy of regulation of land use to protect not only health

and safety but also the amenities of modern living, 106 the Court

has recognized the discretion of government, within the loose confines of the due process clause, to zone in many ways and for many

purposes. The Court will uphold a challengened land-use plan unless it determines that the plan is clearly arbitrary and unreasonable and has no substantial relation to the public health, safety, or

general welfare, 107 or unless the plan as applied amounts to a tak-
AMENDMENT 14—RIGHTS GUARANTEED 1629

108See, e.g., Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992),

and discussion of the Fifth Amendment’s eminent domain power, supra pp. 1382–

95. 109 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). 110 Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). 111 431 U.S. 494 (1977). A plurality of the Court struck down the ordinance as

a violation of substantive due process, an infringment of family living arrangements

which are a protected liberty interest, id. at 498–506, while Justice Stevens concurred on the ground that the ordinance was arbitrary and unreasonable. Id. at 513.

Four Justices dissented. Id. at 521, 531, 541. 112 Buchanan v. Warley, 245 U.S. 60 (1917). 113Welch v. Swasey, 214 U.S. 91 (1909). 114Gorieb v. Fox, 274 U.S. 603 (1927). 115 Agins v. City of Tiburon, 447 U.S. 255 (1980). 116Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). 117 Eubank v. City of Richmond, 226 U.S. 137 (1912).

ing of property without just compensation. 108 Applying these principles, the Court has held that the creation of a residential district

in a village and the exclusion therefrom of apartment houses, retail

stores, and billboards is a permissible exercise of municipal

power. 109 So too, a municipality restricting housing in a community to one-family dwellings, in which any number of persons related by blood, adoption, or marriage could occupy a house but only

two unrelated persons could do so, was sustained in the absence of

any showing that it was aimed at the deprivation of a ‘‘fundamental interest.’’ 110 Such a fundamental interest was found impaired

by a zoning ordinance in Moore v. City of East Cleveland, 111 which

restricted housing occupancy to a single family but so defined ‘‘family’’ that a grandmother who had been living with her two

grandsons of different children was in violation of the ordinance.

Similarly, black persons cannot be forbidden to occupy houses in

blocks where the greater number of houses are occupied by white

persons, or vice versa. 112 But aside from such basic constraints, a

wide range of regulation is permissible. Government may regulate

the height of buildings 113 and establish building setback requirements. 114 The preservation of open spaces, through density controls and restrictions on the numbers of houses, 115 and the preservation of historic structures 116 are also permissible utilizations of

the zoning power.

In one aspect of zoning—the degree to which such decisions

may be delegated to private persons—the Court has not attained

consistency. Thus, it invalidated a city ordinance which conferred

the power to establish building setback lines upon the owners of

two thirds of the property abutting any street, 117 and, subsequently, it struck down an ordinance which permitted the establishment of philanthropic homes for the aged in residential areas

but only upon the written consent of the owners of two-thirds of
1630 AMENDMENT 14—RIGHTS GUARANTEED

118Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928). 119Thomas Cusack Co. v. City of Chicago, 242 U.S. 526 (1917). The Court

thought the case different from Eubank, because in that case the ordinance established no rule but gave to decision of a narrow segment of the community the force

of law, whereas in Cusack the ordinance barred the erection of any billboards but

permitted the prohibition to be modified by the persons most affected. Id. at 531. 120 City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976). Such

referenda do, however, raise equal protection problems. See infra, p. 1858. 121Larkin v. Grendel’s Den, 459 U.S. 116 (1982). 122 Irving Trust Co. v. Day, 314 U.S. 556, 564 (1942).

the property within 400 feet of the proposed facility. 118 In a decision falling chronologically between these two, it sustained an ordinance which permitted property owners to waive a municipal restriction prohibiting the construction of billboards. 119 In its most

recent decision, upholding a city charter provision permitting the

petitioning to citywide referendum of zoning changes and variances

by the city planning commission and necessitating a 55% approval

vote in the referendum to sustain the commission’s decision, the

Court distinguished between delegating to a small group of affected

landowners such a decision relating to other people and the people’s retention of the ultimate legislative power in themselves

which for convenience they had delegated to a legislative body. 120

The zoning power may not be delegated to a church, the Court invalidating under the Establishment Clause a state law permitting

any church to block issuance of a liquor license for a facility to be

operated within 500 feet of the church. 121

Estates, Succession, Abandoned Property.—The Court

upheld a New York Decedent Estate Law that granted to a surviving spouse a right of election to take as in intestacy, as applied to

a widow who, before enactment of the law, had waived any right

to her husband’s estate. Impairment of the widow’s waiver by subsequent legislation did not deprive the husband’s estate of property

without due process of law. Because rights of succession to property

are of statutory creation, the Court explained, New York could

have conditioned any further exercise of testamentary power upon

the giving of right of election to the surviving spouse regardless of

any waiver however formally executed. 122

Even after the creation of a testamentary trust, a State retains

the power to devise new and reasonable directions to the trustee

to meet new conditions arising during its administration, especially

such as the Depression presented to trusts containing mortgages.

Accordingly, no constitutional right is violated by the retroactive

application to an estate on which administration had already begun

of a statute which had the effect of taking away a remainderman’s

right to judicial examination of the trustee’s computation of income.

Under the peculiar facts of the case, however, the remainderman’s
AMENDMENT 14—RIGHTS GUARANTEED 1631

123Demorest v. City Bank Co., 321 U.S. 36, 47–48 (1944). 124 Connecticut Ins. Co. v. Moore, 333 U.S. 541 (1948). Justices Jackson and

Douglas dissented on the ground that New York was attempting to escheat unclaimed funds not actually or constructively located in New York, and which were

the property of beneficiaries who may never have been citizens or residents of New

York.125 341 U.S. 428 (1951). 126 454 U.S. 516 (1982).

right had been created by judicial rules promulgated after the

death of the decedent, so the case is not precedent for a broad rule

of retroactivity. 123

States have several jurisdictional bases for application of escheat and abandoned property laws to out-of-state corporations.

Application of New York’s Abandoned Property Law to insurance

policies on the lives of New York residents issued by foreign corporations did not deprive such companies of property without due

process, where the insured persons had continued to be New York

residents and the beneficiaries were resident at the maturity date

of the policies. The relationship between New York and its residents who abandon claims against foreign insurance companies,

and between New York and foreign insurance companies doing

business therein, is sufficiently close to give New York jurisdiction. 124 In Standard Oil Co. v. New Jersey, 125 a divided Court held

that due process is not violated by a statute escheating to the State

shares of stock in a domestic corporation and unpaid dividends declared thereon, even though the last known owners were nonresidents and the stock was issued and the dividends were held in

another State. The State’s power over the debtor corporation gives

it power to seize the debts or demands represented by the stock

and dividends.

The large discretion the States possess to define abandoned

property and to provide for its disposition is revealed in Texaco v.

Short. 126 There upheld was an Indiana statute which terminated

interests in coal, oil, gas, or other minerals which have not been

used for twenty years and which provided for reversion to the

owner of the interest out of which the mining interests had been

carved. With respect to interests existing at the time of enactment,

the statute provided a two-year grace period in which owners of

mineral interests that were then unused and subject to lapse could

preserve those interests by filing a claim in the recorder’s office.

The ‘‘use’’ of a mineral interest which could prevent its extinction

included the actual or attempted extraction of minerals, the payment of rents or royalties, and any payment of taxes. Merely filing

a claim with the local recorder would preserve the interest. The

statute provided no notice, save for its own publication, to owners
1632 AMENDMENT 14—RIGHTS GUARANTEED

127 Id. at 538. The four dissenters thought that some specific notice was required for persons holding before enactment. Id. at 540. 128See, e.g., Mugler v. Kansas, 123 U.S. 623, 661 (1887), and discussion supra

p. 1575. 129Pierce Oil Corp. v. Hope, 248 U.S. 498 (1919). 130Standard Oil Co. v. Marysville, 279 U.S. 582 (1929). 131 Barbier v. Connolly, 113 U.S. 27 (1885); Soon Hing v. Crowley, 113 U.S. 703

(1885). 132Maguire v. Reardon, 225 U.S. 271 (1921).

of interests, nor did it require surface owners to notify owners of

mineral interests that the interests were about to expire. By a narrow margin, the Court sustained the statute, holding that the

State’s interest in encouraging production, securing timely notices

of property ownership, and settling property titles provided a basis

for enactment, and finding that due process did not require any actual notice to holders of unused mineral interests. Property owners

are charged with maintaining knowledge of the legal conditions of

property ownership. The act provided a grace period and specified

several actions which were sufficient to avoid extinguishment. The

State ‘‘may impose on an owner of a mineral interest the burden

of using that interest or filing a current statement of interests’’ and

it may similarly ‘‘impose on him the lesser burden of keeping informed of the use or nonuse of his own property.’’ 127

Health, Safety, and Morals

Even under the narrowest concept of the police power as limited by substantive due process, it was generally conceded that

states could exercise the power to protect the public health, safety,

and morals. 128 Illustrative cases are noted below.

Safety Regulations.—A variety of measures designed to reduce fire hazards have been upheld. These include municipal ordinances that prohibit the storage of gasoline within 300 feet of any

dwelling, 129 or require that all tanks with a capacity of more than

ten gallons, used for the storage of gasoline, be buried at least

three feet under ground, 130 or which prohibit washing and ironing

in public laundries and wash houses, within defined territorial limits from 10 p.m. to 6 a.m. 131 Equally sanctioned by the Fourteenth

Amendment is the demolition and removal by cities of wooden

buildings erected within defined fire limits contrary to regulations

in force at the time. 132 Construction of property in full compliance

with existing laws, however, does not confer upon the owner an immunity against exercise of the police power. Thus, a 1944 amendment to a Multiple Dwelling Law, requiring installation of automatic sprinklers in lodginghouses of non-fireproof construction

erected prior to said enactment, does not, as applied to a

lodginghouse constructed in 1940 in conformity with all laws then
AMENDMENT 14—RIGHTS GUARANTEED 1633

133Queenside Hills Co. v. Saxl, 328 U.S. 80 (1946). 134 California Reduction Co. v. Sanitary Works, 199 U.S. 306 (1905). 135 Hutchinson v. City of Valdosta, 227 U.S. 303 (1913). 136Sligh v. Kirkwood, 237 U.S. 52, 59–60 (1915). 137Powell v. Pennsylvania, 127 U.S. 678 (1888); Magnano v. Hamilton, 292 U.S.

40 (1934). 138 North American Storage Co. v. City of Chicago, 211 U.S. 306 (1908). 139 Adams v. City of Milwaukee, 228 U.S. 572 (1913). 140 Baccus v. Louisiana, 232 U.S. 334 (1914). 141 Roschen v. Ward, 279 U.S. 337 (1929). 142Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45 (1921). 143 Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916). 144 Hebe Co. v. Shaw, 248 U.S. 297 (1919). 145Price v. Illinois, 238 U.S. 446 (1915).

applicable, deprive the owner of due process, even though compliance entails an expenditure of $7,500 on a property worth only

$25,000. 133

Sanitation.—An ordinance for incineration of garbage and

refuse at a designated place as a means of protecting public health

is not taking of private property without just compensation even

though such garbage and refuse may have some elements of value

for certain purposes. 134 Compelling property owners to connect

with a publicly maintained system of sewers and enforcing that

duty by criminal penalties does not violate the due process

clause. 135

Food, Drugs, Milk.—‘‘The power of the State to . . . prevent

the production within its borders of impure foods, unfit for use, and

such articles as would spread disease and pestilence, is well established.’’ 136 Statutes forbidding or regulating the manufacture of

oleomargarine have been upheld as a valid exercise of such

power. 137 For the same reasons, statutes ordering the destruction

of unsafe and unwholesome food, 138 and prohibiting the sale and

authorizing confiscation of impure milk 139 have been sustained,

notwithstanding that such articles had a value for purposes other

than food. There also can be no question of the authority of the

State, in the interest of public health and welfare, to forbid the sale

of drugs by itinerant vendors 140 or the sale of spectacles by an establishment not in charge of a physician or optometrist. 141 Nor is

it any longer possible to doubt the validity of state regulations pertaining to the administration, sale, prescription, and use of dangerous and habit-forming drugs. 142

Equally valid as police power regulations are laws forbidding

the sale of ice cream not containing a reasonable proportion of butter fat 143 or of condensed milk made from skimmed milk rather

than whole milk 144 or of food preservatives containing boric

acid. 145 Similarly, a statute which prohibits the sale of milk to

which has been added any fat or oil other than a milk fat, and
1634 AMENDMENT 14—RIGHTS GUARANTEED

146Sage Stores Co. v. Kansas, 323 U.S. 32 (1944). 147Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926). 148 Beer Co. v. Massachusetts, 97 U.S. 25, 33 (1878); Mugler v. Kansas, 123 U.S.

623 (1887); Kidd v. Pearson, 128 U.S. 1 (1888); Purity Extract Co. v. Lynch, 226

U.S. 192 (1912); Clark Distilling Co. v. Western Md. Ry., 242 U.S. 311 (1917);

Barbour v. Georgia, 249 U.S. 454 (1919). 149Mugler v. Kansas, 123 U.S. 623, 671 (1887). 150 Hawes v. Georgia, 258 U.S. 1 (1922); Van Oster v. Kansas, 272 U.S. 465

(1926). 151Stephenson v. Binford, 287 U.S. 251 (1932). 152Stanley v. Public Utilities Comm’n, 295 U.S. 76 (1935). 153Stephenson v. Binford, 287 U.S. 251 (1932).

which has, as one of its purposes, the prevention of fraud and deception in the sale of milk products, does not, when applied to

‘‘filled milk’’ having the taste, consistency, and appearance of whole

milk products, violate the due process clause. Filled milk is inferior

to whole milk in its nutritional content and cannot be served to

children as a substitute for whole milk without producing a dietary

deficiency. 146 However, a statute forbidding the sale of bedding

made with shoddy, even when sterilized and therefore harmless to

health, was held to be arbitrary and therefore invalid. 147

Intoxicating Liquor.—‘‘[O]n account of their well-known noxious qualities and the extraordinary evils shown by experience to

be consequent upon their use, a State . . . [is competent] to prohibit [absolutely the] manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders. . . .’’ 148 And to implement such prohibition, a State has the power to declare that

places where liquor is manufactured or kept shall be deemed common nuisances, 149 and even to subject an innocent owner to the

forfeiture of his property for the acts of a wrongdoer. 150

Regulation of Motor Vehicles and Carriers.—The highways

of a State are public property, the primary and preferred use of

which is for private purposes; their uses for purposes of gain may

generally be prohibited by the legislature or conditioned as it sees

fit. 151 In limiting the use of its highways for intrastate transportation for hire, a State reasonably may provide that carriers who

have furnished adequate, responsible, and continuous service over

a given route from a specified data in the past shall be entitled to

licenses as a matter of right but that the licensing of those whose

service over the route began later than the date specified shall depend upon public convenience and necessity. 152 To require private

contract carriers for hire to obtain a certificate of convenience and

necessity, which is not granted if the service of common carriers is

impaired thereby, and to fix minimum rates applicable thereto,

which are not less than those prescribed for common carriers, is

valid as a means of conserving highways, 153 but any attempt to
AMENDMENT 14—RIGHTS GUARANTEED 1635

154Michigan Pub. Utils. Comm’n v. Duke, 266 U.S. 570 (1925). 155Frost Trucking v. Railroad Comm’n, 271 U.S. 583 (1926); Smith v. Cahoon,

283 U.S. 553 (1931). 156 Bradley v. Public Utils. Comm’n, 289 U.S. 92 (1933). 157Sproles v. Binford, 286 U.S. 374 (1932). 158 Railway Express Agency v. New York, 336 U.S. 106 (1949). 159 Reitz v. Mealey, 314 U.S. 33 (1941); Kesler v. Department of Pub. Safety,

369 U.S. 153 (1962). But see Perez v. Campbell, 402 U.S. 637 (1971). Procedural due

process must, of course be observed. Bell v. Burson, 402 U.S. 535 (1971). A nonresident owner who loans his automobile in another state, by the law of which he

is immune from liability for the borrower’s negligence and who was not in the state

at the time of the accident, is not subjected to any unconstitutional deprivation by

a law thereof, imposing liability on the owner for the negligence of one driving the

car with the owner’s permission. Young v. Masci, 289 U.S. 253 (1933). 160 Ex parte Poresky, 290 U.S. 30 (1933). See also Packard v. Banton, 264 U.S.

140 (1924); Sprout v. South Bend, 277 U.S. 163 (1928); Hodge Co. v. Cincinnati, 284

U.S. 335 (1932); Continental Baking Co. v. Woodring, 286 U.S. 352 (1932).

convert private carriers into common carriers, 154 or to subject them

to the burdens and regulations of common carriers, without expressly declaring them to be common carriers, is violative of due

process. 155 In the absence of legislation by Congress, a State may,

in protection of the public safety, deny an interstate motor carrier

the use of an already congested highway. 156

In exercising its authority over its highways, on the other

hand, a State is not limited merely to the raising of revenue for

maintenance and reconstruction or to regulating the manner in

which vehicles shall be operated, but may also prevent the wear

and hazards due to excessive size of vehicles and weight of load.

Accordingly, a statute limiting to 7,000 pounds the net load permissible for trucks is not unreasonable. 157 No less constitutional is a

municipal traffic regulation which forbids the operation in the

streets of any advertising vehicle, excepting vehicles displaying

business notices or advertisements of the products of the owner

and not used mainly for advertising; and such regulation may be

validly enforced to prevent an express company from selling advertising space on the outside of its trucks. Inasmuch as it is the judgment of local authorities that such advertising affects public safety

by distracting drivers and pedestrians, courts are unable to hold

otherwise in the absence of evidence refuting that conclusion. 158

Any appropriate means adopted to insure compliance and care

on the part of licensees and to protect other highway users being

consonant with due process, a State may also provide that a driver

who fails to pay a judgment for negligent operation shall have his

license and registration suspended for three years, unless, in the

meantime, the judgment is satisfied or discharged. 159 Compulsory

automobile insurance is so plainly valid as to present no federal

constitutional question. 160
1636 AMENDMENT 14—RIGHTS GUARANTEED

161L’Hote v. New Orleans, 177 U.S. 587 (1900). 162 Ah Sin v. Wittman, 198 U.S. 500 (1905). 163Marvin v. Trout, 199 U.S. 212 (1905). 164Stone v. Mississippi, 101 U.S. 814 (1880); Douglas v. Kentucky, 168 U.S. 488

(1897). 165See, e.g., Snowden v. Hughes, 321 U.S. 1 (1944) (right to become a candidate

for state office is a privilege only, hence an unlawful denial of such right is not a

denial of a right of ‘‘property’’). Cases under the equal protection clause now mandate a different result. See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 75

(1978) (seeming to conflate due process and equal protection standards in political

rights cases). 166 Angle v. Chicago, St. Paul, M. & D. Ry., 151 U.S. 1 (1894). 167 Coombes v. Getz, 285 U.S. 434, 442, 448 (1932). 168Gibbes 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). 169Shriver v. Woodbine Bank, 285 U.S. 467 (1932).

Protecting Morality.—Unless effecting a clear, unmistakable

infringement of rights secured by fundamental law, legislation suppressing prostitution 161 or gambling will be upheld by the Court as

concededly within the police power of a State. 162 Accordingly, a

state statute may provide that, in the event a judgment is obtained

against a party winning money, a lien may be had on the property

of the owner of the building where the gambling transaction was

conducted when the owner knowingly consented to the gambling. 163 For the same reason, lotteries, including those operated

under a legislative grant, may be forbidden, irrespective of any particular equities. 164

Vested Rights, Remedial Rights, Political Candidacy

Inasmuch as the Due Process Clause protects against arbitrary

deprivation of ‘‘property,’’ privileges not constituting property are

not entitled to protection. 165 Because an existing right of action to

recover damages for an injury is property, that right of action is

protected by the clause. 166 Thus, the retroactive repeal of a provision which made directors liable for moneys embezzled by corporate

officers, by preventing enforcement of a liability which already had

arisen, deprived certain creditors of their property without due

process of law. 167 But while a vested cause of action is property,

a person has no constitutionally protected property interest in any

particular form of remedy and is guaranteed only the preservation

of a substantial right to redress by any effective procedure. 168 Accordingly, a statute creating an additional remedy for enforcing

stockholders’ liability is not, as applied to stockholders then holding stock, violative of due process. 169 Nor is a law which lifts a

statute of limitations and makes possible a suit, theretofore barred,
AMENDMENT 14—RIGHTS GUARANTEED 1637

170 Chase Securities Corp. v. Donaldson, 325 U.S. 304, 315–16 (1945). 171Soliah v. Heskin, 222 U.S. 522 (1912); City of Trenton v. New Jersey, 262

U.S. 182 (1923). The equal protection clause has been employed, however, to limit

a State’s discretion with regard to certain matters. Infra, pp. 1892–1911. 172 City of Chicago v. Sturges, 222 U.S. 313 (1911). 173Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U.S. 285, 289 (1883). 174Michigan ex rel. Kies v. Lowrey, 199 U.S. 233 (1905). 175 Hunter v. Pittsburgh, 207 U.S. 161 (1907). 176Stewart v. Kansas City, 239 U.S. 14 (1915).

for the value of certain securities. ‘‘The Fourteenth Amendment

does not make an act of state legislation void merely because it has

some retrospective operation. . . . Some rules of law probably could

not be changed retroactively without hardship and oppression . . . .

Assuming that statutes of limitation, like other types of legislation,

could be so manipulated that their retroactive effects would offend

the constitution, certainly it cannot be said that lifting the bar of

a statute of limitation so as to restore a remedy lost through mere

lapse of time is per se an offense against the Fourteenth Amendment.’’ 170

Control of Local Units of Government

The Fourteenth Amendment does not deprive a State of the

power to determine what duties may be performed by local officers,

and whether they shall be appointed or popularly elected. 171 Thus,

a statute requiring cities to indemnify owners of property damaged

by mobs or during riots effects no unconstitutional deprivation of

the property even in circumstances when the city could not have

prevented the violence. 172 Likewise, a person obtaining a judgment

against a municipality for damages resulting from a riot is not deprived of property without due process of law by an act which so

limits the municipality’s taxing power as to prevent collection of

funds adequate to pay it. As long as the judgment continues as an

existing liability no unconstitutional deprivation is experienced. 173

Local units of government obliged to surrender property to

other units newly created out of the territory of the former cannot

successfully invoke the due process clause, 174 nor may taxpayers

allege any unconstitutional deprivation as a result of changes in

their tax burden attendant upon the consolidation of contiguous

municipalities. 175 Nor is a statute requiring counties to reimburse

cities of the first class but not other classes for rebates allowed for

prompt payment of taxes in conflict with the due process clause. 176

Taxing Power

Generally.—It was not contemplated that the adoption of the

Fourteenth Amendment would restrain or cripple the taxing power
1638 AMENDMENT 14—RIGHTS GUARANTEED

1Tonawanda v. Lyon, 181 U.S. 389 (1901); Cass Farm Co. v. Detroit, 181 U.S.

396 (1901). 2Southwestern Oil Co. v. Texas, 217 U.S. 114, 119 (1910).

3Loan Association v. City of Topeka, 87 U.S. (20 Wall.) 655 (1875) (voiding tax

employed by city to make a substantial grant to a bridge manufacturing company

to induce it to locate its factory in the city). See also City of Parkersburg v. Brown,

106 U.S. 487 (1882) (private purpose bonds not authorized by state constitution). 4 Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 515 (1937). In applying the Fifth Amendment Due Process Clause the Court has said that discretion as

to what is a public purpose ‘‘belongs to Congress, unless the choice is clearly wrong,

a display of arbitrary power, not an exercise of judgment.’’ Helvering v. Davis, 301

U.S. 619, 640 (1937); United States v. Butler, 297 U.S. 1, 67 (1936). That payment

may be made to private individuals is now irrelevant. Carmichael, supra, at 518.

Cf. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) (sustaining tax imposed

on mine companies to compensate workers for black lung disabilities, including

those contracting disease before enactment of tax, as way of spreading cost of employee liabilities). 5 Jones v. City of Portland, 245 U.S. 217 (1917).

6Green v. Frazier, 253 U.S. 233 (1920).

7 Nicchia v. New York, 254 U.S. 228 (1920).

8Milheim v. Moffat Tunnel Dist., 262 U.S. 710 (1923).

9 Cochran v. Board of Education, 281 U.S. 370 (1930).

10 Carmichael v. Southern Coal & Coke Co., 300 U.S. 644 (1937). 11Fox v. Standard Oil Co., 294 U.S. 87, 99 (1935).

of the States. 1 Rather, the purpose of the amendment was to extend to the residents of the States the same protection against arbitrary state legislation affecting life, liberty, and property as was

afforded against Congress by the Fifth Amendment. 2

Public Purpose.—As a general matter, public moneys cannot

be expended for other than public purposes. Some early cases applied this principle by invalidating taxes judged to be imposed to

raise money for purely private rather than public purposes. 3 However, modern notions of public purpose have expanded to the point

where the limitation has little practical import. Whether a use is

public or private, while it is ultimately a judicial question, ‘‘is a

practical question addressed to the law-making department, and it

would require a plain case of departure from every public purpose

which could reasonably be conceived to justify the intervention of

a court.’’ 4 Taxes levied for each of the following purposes have been

held to be for a public use: a city coal and fuel yard, 5 a state bank,

a warehouse, an elevator, a flourmill system, homebuilding

projects, 6 a society for preventing cruelty to animals (dog license

tax), 7 a railroad tunnel, 8 books for school children attending private as well as public schools, 9 and relief of unemployment. 10

Other Considerations Affecting Validity: Excessive Burden; Ratio of Amount of Benefit Received.—When the power to

tax exists, the extent of the burden is a matter for the discretion

of the lawmakers, 11 and the Court will refrain from condemning a
AMENDMENT 14—RIGHTS GUARANTEED 1639

12Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935). See also Kelly v. City

of Pittsburgh, 104 U.S. 78 (1881); Chapman v. Zobelein, 237 U.S. 135 (1915); Alaska

Fish Salting & By-Products Co. v. Smith, 255 U.S. 44 (1921); Magnano Co. v. Hamilton, 292 U.S. 40 (1934); City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369

(1974). 13 Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933); Carmichael v.

Southern Coal & Coke Co., 301 U.S. 495 (1937). A taxpayer therefore cannot contest

the imposition of an income tax on the ground that, in operation, it returns to his

town less income tax than he and its other inhabitants pay. Dane v. Jackson, 256

U.S. 589 (1921). 14Stebbins v. Riley, 268 U.S. 137, 140, 141 (1925). 15 Cahen v. Brewster, 203 U.S. 543 (1906). 16Keeney v. New York, 222 U.S. 525 (1912). 17 Coolidge v. Long, 282 U.S. 582 (1931). 18 Binney v. Long, 299 U.S. 280 (1936); Nickel v. Cole, 256 U.S. 222 (1921). See

also Salomon v. State Tax Comm’n, 278 U.S. 484 (1929) (contingent remainder); and

Orr v. Gilman, 183 U.S. 278 (1902) (power of appointment).

tax solely on the ground that it is excessive. 12 Nor can the constitutionality of taxation be made to depend upon the taxpayer’s

enjoyment of any special benefits from use of the funds raised by

taxation. 13

Estate, Gift, and Inheritance Taxes.—The power of testamentary disposition and the privilege of inheritance being legitimate subjects of taxation, a State may apply its inheritance tax to

either the transmission, or the exercise of the legal power of transmission, of property by will or descent, or to the legal privilege of

taking property by devise or descent. 14 Accordingly, an inheritance

tax law, enacted after the death of a testator but before the distribution of his estate, constitutionally may be imposed on the

shares of legatees, notwithstanding that under the law of the State

in effect on the date of such enactment, ownership of the property

passed to the legatees upon the testator’s death. 15 Equally consistent with due process is a tax on an inter vivos transfer of property

by deed intended to take effect upon the death of the grantor. 16

When remainders indisputably vest at the time of the creation

of a trust and a succession tax is enacted thereafter, the imposition

of the tax on the transfer of such remainder is unconstitutional. 17

But where the remaindermen’s interests are contingent and do not

vest until the donor’s death subsequent to the adoption of the statute, the tax is valid. 18

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
1640 AMENDMENT 14—RIGHTS GUARANTEED

19Welch v. Henry, 305 U.S. 134, 147 (1938). 20 New York ex rel. Cohn v. Graves, 300 U.S. 308, 313 (1937). 21 Id. See also Shaffer v. Carter, 252 U.S. 37, 49–52 (1920); and Travis v. Yale

& Towne Mfg. Co., 252 U.S. 60 (1920) (states may tax the income of nonresidents

derived from property or activity within the state). 22See, 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). 23Welch 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. 24Puget Sound Co. v. Seattle, 291 U.S. 619 (1934). 25 New York Tel. Co. v. Dolan, 265 U.S. 96 (1924). 26 Barwise v. Sheppard, 299 U.S. 33 (1936).

have refrained from making had he anticipated the tax . . . [is]

thought to be so arbitrary . . . as to be a denial of due process.’’ 19

Income Taxes.—The authority of states to tax income is ‘‘universally recognized.’’ 20 Years ago the Court explained that

‘‘[e]njoyment of the privileges of residence in the state and the attendant right to invoke the protection of its laws are inseparable

from responsibility for sharing the costs of government. . . . A tax

measured by the net income of residents is an equitable method of

distributing the burdens of government among those who are privileged to enjoy its benefits.’’ 21 Also, a tax on income is not constitutionally suspect because retroactive. The routine practice of making

taxes retroactive for the entire year of the legislative session in

which the tax is enacted has long been upheld, 22 and there are

also situations in which courts have upheld retroactive application

to the preceding year or two. 23

Franchise Taxes.—A city ordinance imposing annual license

taxes on light and power companies is not violative of the due process clause merely because the city has entered the power business

in competition with such companies. 24 Nor does a municipal charter authorizing the imposition upon a local telegraph company of

a tax upon the lines of the company within its limits at the rate

at which other property is taxed but upon an arbitrary valuation

per mile, deprive the company of its property without due process

of law, inasmuch as the tax is a mere franchise or privilege tax. 25

Severance Taxes.—A state excise tax on the production of oil

which extends to the royalty interest of the lessor as well as to the

interest of the lessee engaged in the active work of production, the

tax being apportioned between these parties according to their respective interest in the common venture, is not arbitrary as applied

to the lessor, but consistent with due process. 26
AMENDMENT 14—RIGHTS GUARANTEED 1641

27 Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362 (1940). 28Paddell v. City of New York, 211 U.S. 446 (1908). 29 Hagar v. Reclamation Dist., 111 U.S. 701 (1884). 30 Butters v. City of Oakland, 263 U.S. 162 (1923). 31Missouri Pac. R.R. v. Road District, 266 U.S. 187 (1924). See also Roberts v.

Irrigation Dist., 289 U.S. 71 (1933), in which it was also stated that an assessment

to pay the general indebtedness of an irrigation district is valid, even though in excess of the benefits received. 32 Houck v. Little River Dist., 239 U.S. 254 (1915). 33 Road Dist. v. Missouri Pac. R.R., 274 U.S. 188 (1927). 34Kansas City Ry. v. Road Dist., 266 U.S. 379 (1924).

Real Property Taxes.—The maintenance of a high assessment in the face of declining value is merely another way of achieving an increase in the rate of property tax. Hence, an

overassessment constitutes no deprivation of property without due

process of law. 27 Likewise, land subject to mortgage may be taxed

for its full value without deduction of the mortgage debt from the

valuation. 28

A State may defray the entire expense of creating, developing,

and improving a political subdivision either from funds raised by

general taxation or by apportioning the burden among the municipalities in which the improvements are made or by creating, or authorizing the creation of, tax districts to meet sanctioned outlays. 29

Where a state statute authorizes municipal authorities to define

the district to be benefited by a street improvement and to assess

the cost of the improvement upon the property within the district

in proportion to benefits, their action in establishing the district

and in fixing the assessments on included property, after due hearing of the owners as required by the statute cannot, when not arbitrary or fradulent, be reviewed under the Fourteenth Amendment

upon the ground that other property benefited by the improvement

was not included. 30

It is also proper to impose a special assessment for the preliminary expenses of an abandoned road improvement, even though the

assessment exceeds the amount of the benefit which the assessors

estimated the property would receive from the completed work. 31

Likewise a levy upon all lands within a drainage district of a tax

of twenty-five cents per acre to defray preliminary expenses does

not unconstitutionally take the property of landowners within that

district who may not be benefited by the completed drainage

plans. 32 On the other hand, when the benefit to be derived by a

railroad from the construction of a highway will be largely offset

by the loss of local freight and passenger traffic, an assessment

upon such railroad is violative of due process, 33 whereas any gains

from increased traffic reasonably expected to result from a road improvement will suffice to sustain an assessment thereon. 34 Also the
1642 AMENDMENT 14—RIGHTS GUARANTEED

35Louisville & Nashville R.R. v. Barber Asphalt Co., 197 U.S. 430 (1905). 36Myles Salt Co. v. Iberia Drainage Dist., 239 U.S. 478 (1916). 37Wagner v. Baltimore, 239 U.S. 207 (1915). 38 Charlotte Harbor Ry. v. Welles, 260 U.S. 8 (1922). 39 112 S. Ct. 1904 (1992).

fact that the only use made of a lot abutting on a street improvement is for a railway right of way does not make invalid, for lack

of benefits, an assessment thereon for grading, curbing, and paving. 35 However, when a high and dry island was included within

the boundaries of a drainage district from which it could not be

benefitted directly or indirectly, a tax imposed on the island land

by the district was held to be a deprivation of property without due

process of law. 36 Finally, a State may levy an assessment for special benefits resulting from an improvement already made 37 and

may validate an assessment previously held void for want of authority. 38

Jurisdiction to Tax

The operation of the Due Process Clause as a limitation on the

taxing power of the states has been an issue in a variety of different contexts, but most involve one of the other of two basic issues, first, the relationship between the state exercising taxing

power and the object of that exercise of power, and second, whether

the degree of contact is sufficient to justify the state’s imposition

of a particular obligation. Often these issues arise in conjunction

with claims that the state’s actions are also violative of the Commerce Clause. Illustrative of the factual settings in which such issues arise are 1), determining the scope of the business activity of

a multijurisdictional entity that is subject to a state’s taxing power,

2) application of wealth transfer taxes to gifts or bequests of nonresidents, 3) allocation of the income of multijurisdictional entities

for tax purposes, 4) the scope of state authority to tax the income

of nonresidents, and 5) collection of state use taxes.

The Court’s opinions in these cases have often discussed due

process and Commerce Clause issues as if they were indistinguishable. The recent decision in Quill Corp. v. North Dakota, 39 however, utilized a two-tier analysis that found sufficient contact to

satisfy due process but not Commerce Clause requirements. Quill

may be read as implying that the more stringent Commerce Clause

standard subsumes due process jurisdictional issues, and that consequently these due process issues need no longer be separately

considered. This interpretation has yet to be confirmed, however,

and a detailed review of due process precedents may prove useful.
AMENDMENT 14—RIGHTS GUARANTEED 1643

40 112 S. Ct. 1904 (1992). 41The 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). 42Quill Corp. v. North Dakota, 112 S. Ct. at 1911–16 (refusing to overrule the

Commerce Clause ruling in National Bellas Hess v. Department of Revenue, 386

U.S. 753, 756 (1967)). See also Trinova Corp. v. Michigan Dep’t of Treasury, 498

U.S. 358 (1991) (neither the Commerce Clause nor the Due Process Clause is violated by application of a business tax, measured on a value added basis, to a company that manufactures goods in another state, but that operates a sales office and

conducts sales within state). 43 Union Transit Co. v. Kentucky, 199 U.S. 194, 204 (1905). See also Louisville

& Jeffersonville Ferry Co. v. Kentucky, 188 U.S. 385 (1903). 44 Carstairs v. Cochran, 193 U.S. 10 (1904); Hannis Distilling Co. v. Baltimore,

216 U.S. 285 (1910); Frick v. Pennsylvania, 268 U.S. 473 (1925); Blodgett v. Silberman, 277 U.S. 1 (1928).

Sales/Use Taxes.—In Quill Corp. v. North Dakota, 40 the

Court struck down a state statute requiring an out-of-state mail

order company with neither outlets nor sales representatives in the

state to collect and transmit use taxes on sales to state residents,

but did so on Commerce Clause rather than due process grounds.

Taxation of an interstate business does not offend due process, the

Court held, if that business ‘‘purposefully avails itself of the benefits of an economic market in the [taxing] State . . . even if it has

no physical presence in the State.’’ 41 A physical presence within

the state is necessary, however, under Commerce Clause analysis

applicable to taxation of mail order sales. 42

Land.—Even prior to the ratification of the Fourteenth

Amendment, it was a settled principle that a State could not tax

land situated beyond its limits; subsequently elaborating upon that

principle the Court has said that, ‘‘we know of no case where a legislature has assumed to impose a tax upon land within the jurisdiction of another State, much less where such action has been defended by a court.’’ 43 Insofar as a tax payment may be viewed as

an exaction for the maintenance of government in consideration of

protection afforded, the logic sustaining this rule is self-evident.

Tangible Personalty.—As long as tangible personal property

has a situs within its borders, a State validly may tax the same,

whether directly through an ad valorem tax or indirectly through

death taxes, irrespective of the residence of the owner. 44 By the

same token, if tangible personal property makes only occasional incursions into other States, its permanent situs remains in the State
1644 AMENDMENT 14—RIGHTS GUARANTEED

45 New York ex rel. New York Cent. R.R. v. Miller, 202 U.S. 584 (1906). As to

the competence of States to tax equipment of foreign carriers which enter their jurisdiction intermittently, see supra, pp. 227–33. 46Wheeling Steel Corp. v. Fox, 298 U.S. 193, 209–10 (1936); Union Transit Co.

v. Kentucky, 199 U.S. 194, 207 (1905); Johnson Oil Co. v. Oklahoma, 290 U.S. 158

(1933). 47 Union Transit Co. v. Kentucky, 199 U.S. 194 (1905). Justice Black, in Central

R.R. v. Pennsylvania, 370 U.S. 607, 619–21 (1962), had his ‘‘doubts about the use

of the Due Process Clause to . . . [invalidate State taxes]. The modern use of due

process to invalidate State taxes rests on two doctrines: (1) that a State is without

‘jurisdiction to tax’ property beyond its boundaries, and (2) that multiple taxation

of the same property by different States is prohibited. Nothing in the language or

the history of the Fourteenth Amendment, however, indicates any intention to establish either of these two doctrines . . . And in the first case [Railroad Co. v. Jackson, 74 U.S. (7 Wall.) 262 (1869)] striking down a State tax for lack of judisdiction

to tax after the passage of that Amendment, neither the Amendment nor its Due

Process Clause . . . was ever mentioned.’’ He also maintained that Justice Holmes

shared this view in Union Transit Co. v. Kentucky, supra, at 211. 48Southern Pacific Co. v. Kentucky, 222 U.S. 63 (1911). 49Old Dominion Steamship Co. v. Virginia, 198 U.S. 299 (1905). 50 199 U.S. 194 (1905). See also Central R.R. v. Pennsylvania, 370 U.S. 607,

611–17 (1962).

of origin, and, subject to certain exceptions, is taxable only by the

latter. 45 The ancient maxim, mobilia sequuntur personam, which

had its origin when personal property consisted in the main of articles appertaining to the person of the owner, yielded in modern

times to the ‘‘law of the place where the property is kept and used.’’

The tendency has been to treat tangible personal property as ‘‘having a situs of its own for the purpose of taxation, and correlatively

to . . . exempt [it] at the domicile of its owner.’’ 46 When rolling

stock is permanently located and employed in the prosecution of a

business outside the boundaries of a domiciliary State, the latter

has no jurisdiction to tax it. 47 Vessels, however, inasmuch as they

merely touch briefly at numerous ports, never acquire a taxable

situs at any one of them, and are taxable by the domicile of their

owners or not at all, 48 unless of course, the ships operate wholly

on the waters within one State, in which event they are taxable

there and not at the domicile of the owners. 49 Airplanes have been

treated in a similar manner for tax purposes. Noting that the entire fleet of airplanes of an interstate carrier were ‘‘never continuously without the [domiciliary] State during the whole tax year,’’

that such airplanes also had their ‘‘home port’’ in the domiciliary

State, and that the company maintained its principal office therein,

the Court sustained a personal property tax applied by the domiciliary State to all the airplanes owned by the taxpayer. No other

State was deemed able to accord the same protection and benefits

as the taxing State in which the taxpayer had both its domicile and

its business situs; the doctrines of Union Transit Co. v. Kentucky, 50

as to the taxability of permanently located tangibles, and that of
AMENDMENT 14—RIGHTS GUARANTEED 1645

51Pullman’s Car Co. v. Pennsylvania, 141 U.S. 18 (1891). 52 Northwest Airlines v. Minnesota, 322 U.S. 292, 294–97, 307 (1944). The case

was said to be governed by New York ex rel. New York Cent. R.R. v. Miller, 202

U.S. 584, 596 (1906). As to the problem of multiple taxation of such airplanes, which

had in fact been taxed proportionately by other States, the Court declared that the

‘‘taxability of any part of this fleet by any other State, than Minnesota, in view of

the taxability of the entire fleet by that State, is not now before us.’’ Justice Jackson, in a concurring opinion, would treat Minnesota’s right to tax as exclusively of

any similar right elsewhere. 53 Johnson Oil Co. v. Oklahoma, 290 U.S. 158 (1933). 54Pittsburgh C.C. & St. L. Ry. v. Backus, 154 U.S. 421 (1894). 55Wallace 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). 56Great Northern Ry. v. Minnesota, 278 U.S. 503 (1929). 57 Illinois Cent. R.R. v. Minnesota, 309 U.S. 157 (1940).

apportionment, for instrumentalities engaged in interstate commerce 51 were held to be inapplicable. 52

Conversely, a nondomiciliary State, although it may not tax

property belonging to a foreign corporation which has never come

within its borders, may levy on movables which are regularly and

habitually used and employed therein. Thus, while the fact that

cars are loaded and reloaded at a refinery in a State outside the

owner’s domicile does not fix the situs of the entire fleet in that

State, the latter may nevertheless tax the number of cars which on

the average are found to be present within its borders. 53 Moreover,

in assessing that part of a railroad within its limits, a State need

not treat it as an independent line, disconnected from the part

without, and place upon the property within the State only a value

which could be given to it if operated separately from the balance

of the road. The State may ascertain the value of the whole line

as a single property and then determine the value of the part within on a mileage basis, unless there be special circumstances which

distinguish between conditions in the several States. 54 But no

property of an interstate carrier can be taken into account unless

it can be seen in some plain and fairly intelligible way that it adds

to the value of the road and the rights exercised in the State. 55

Also, a state property tax on railroads, which is measured by gross

earnings apportioned to mileage, is not unconstitutional in the absence of proof that it exceeds what would be legitimate as an ordinary tax on the property valued as part of a going concern or that

it is relatively higher than taxes on other kinds of property. 56 The

tax reaches only revenues derived from local operations, and the

fact that the apportionment formula does not result in mathematical exactitude is not a constitutional defect. 57
1646 AMENDMENT 14—RIGHTS GUARANTEED

58 Howard, State Jurisdiction to Tax Intangibles: A Twelve Year Cycle, 8 MO. L.

REV. 155, 160–62 (1943); Rawlins, State Jurisdiction to Tax Intangibles: Some Modern Aspects, 18 TEX. L. REV. 196, 314–15 (1940). 59Kirtland v. Hotchkiss, 100 U.S. 491, 498 (1879). 60Savings Society v. Multnomah County, 169 U.S. 421 (1898). 61 Bristol v. Washington County, 177 U.S. 133, 141 (1900). 62Fidelity & Columbia Trust Co. v. Louisville, 245 U.S. 54 (1917). 63 Rogers v. Hennepin County, 240 U.S. 184 (1916).

Intangible Personalty.—To determine whether a State, or

States, may tax intangible personal property, the Court has applied

the fiction, mobilia sequuntur personam and has also recognized

that such property may acquire, for tax purposes, a business or

commercial situs where permanently located, but it has never

clearly disposed of the issue whether multiple personal property

taxation of intangibles is consistent with due process. In the case

of corporate stock, however, the Court has obliquely acknowledged

that the owner thereof may be taxed at his own domicile, at the

commercial situs of the issuing corporation, and at the latter’s

domicile; constitutional lawyers speculated whether the Court

would sustain a tax by all three jurisdictions, or by only two of

them, and, if the latter, which two, the State of the commercial

situs and of the issuing corporation’s domicile, or the State of the

owner’s domicile and that of the commercial situs. 58

Thus far, the Court has sustained the following personal property taxes on intangibles:

(1) A debt held by a resident against a nonresident, evidenced

by a bond of the debtor and secured by a mortgage on real estate

in the State of the debtor’s residence. 59

(2) A mortgage owned and kept outside the State by a nonresident but on land within the State. 60

(3) Investments, in the form of loans to a resident, made by a

resident agent of a nonresident creditor, are taxable to the nonresident creditor. 61

(4) Deposits of a resident in a bank in another State, where he

carries on a business and from which these deposits are derived,

but belonging absolutely to him and not used in the business, are

subject to a personal property tax in the city of his residence,

whether or not they are subject to tax in the State where the business is carried on. The tax is imposed for the general advantage

of living within the jurisdiction (benefit-protection theory), and may

be measured by reference to the riches of the person taxed. 62

(5) Membership owned by a nonresident in a domestic exchange, known as a chamber of commerce. 63
AMENDMENT 14—RIGHTS GUARANTEED 1647

64 Citizens National Bank v. Durr, 257 U.S. 99, 109 (1921). 65 Hawley v. Malden, 232 U.S. 1, 12 (1914). 66First Bank Corp. v. Minnesota, 301 U.S. 234, 241 (1937). 67Schuylkill Trust Co. v. Pennsylvania, 302 U.S. 506 (1938). 68 International Harvester Co. v. Department of Taxation, 322 U.S. 435 (1944).

(6) Membership by a resident in a stock exchange located in

another State. ‘‘Double taxation’’ the Court observed ‘‘by one and

the same State is not’’ prohibited ‘‘by the Fourteenth Amendment;

much less is taxation by two States upon identical or closely related property interest falling within the jurisdiction of both, forbidden.’’ 64

(7) A resident owner may be taxed on stock held in a foreign

corporation that does no business and has no property within the

taxing State. The Court also added that ‘‘undoubtedly the State in

which a corporation is organized may . . . [tax] all of its shares

whether owned by residents or nonresidents.’’ 65

(8) Stock in a foreign corporation owned by another foreign corporation transacting its business within the taxing State. The

Court attached no importance to the fact that the shares were already taxed by the State in which the issuing corporation was domiciled and might also be taxed by the State in which the stock

owner was domiciled, or at any rate did not find it necessary to

pass upon the validity of the latter two taxes. The present levy was

deemed to be tenable on the basis of the benefit-protection theory,

namely, ‘‘the economic advantages realized through the protection

at the place . . . [of business situs] of the ownership of rights in

intangibles. . . .’’ 66

(9) Shares owned by nonresident shareholders in a domestic

corporation, the tax being assessed on the basis of corporate assets

and payable by the corporation either out of its general fund or by

collection from the shareholder. The shares represent an aliquot

portion of the whole corporate assets, and the property right so represented arises where the corporation has its home, and is therefore within the taxing jurisdiction of the State, notwithstanding

that ownership of the stock may also be a taxable subject in another State. 67

(10) A tax on the dividends of a corporation may be distributed

ratably among stockholders regardless of their residence outside

the State, the stockholders being the ultimate beneficiaries of the

corporation’s activities within the taxing State and protected by the

latter and subject to its jurisdiction. 68 This tax, though collected by

the corporation, is on the transfer to a stockholder of his share of
1648 AMENDMENT 14—RIGHTS GUARANTEED

69Wisconsin Gas Co. v. United States, 322 U.S. 526 (1944). 70 New York ex rel. Hatch v. Reardon, 204 U.S. 152 (1907). 71Graniteville Mfg. Co. v. Query, 283 U.S. 376 (1931). 72 Buck v. Beach, 206 U.S. 392 (1907). 73 Brooke v. City of Norfolk, 277 U.S. 27 (1928). 74Greenough v. Tax Assessors, 331 U.S. 486, 496–97 (1947). 75 277 U.S. 27 (1928). 76 280 U.S. 83 (1929).

corporate dividends within the taxing State and is deducted from

said dividend payments. 69

(11) Stamp taxes on the transfer within the taxing State by

one nonresident to another of stock certificates issued by a foreign

corporation, 70 and upon promissory notes executed by a domestic

corporation, although payable to banks in other States. 71 These

taxes, however, were deemed to have been laid, not on the property, but upon an event, the transfer in one instance, and execution

in the latter which took place in the taxing State.

The following personal property taxes on intangibles have been

invalidated:

(1) Debts evidenced by notes in safekeeping within the taxing

State, but made and payable and secured by property in a second

State and owned by a resident of a third State. 72

(2) A property tax sought to be collected from a life beneficiary

on the corpus of a trust composed of property located in another

State and as to which the beneficiary had neither control nor possession, apart from the receipt of income therefrom. 73 However, a

personal property tax may be collected on one-half of the value of

the corpus of a trust from a resident who is one of the two trustees

thereof, not withstanding that the trust was created by the will of

a resident of another State in respect of intangible property located

in the latter State, at least where it does not appear that the trustee is exposed to the danger of other ad valorem taxes in another

State. 74 The first case, Brooke v. Norfolk, 75 is distinguishable by

virture of the fact that the property tax therein voided was levied

upon a resident beneficiary rather than upon a resident trustee in

control of nonresident intangibles. Different too is Safe Deposit &

T. Co. v. Virginia, 76 where a property tax was unsuccessfully demanded of a nonresident trustee with respect to nonresident intangibles under its control.

(3) A tax, measured by income, levied on trust certificates held

by a resident, representing interests in various parcels of land

(some inside the State and some outside), the holder of the certificates, though without a voice in the management of the property,
AMENDMENT 14—RIGHTS GUARANTEED 1649

77Senior v. Braden, 295 U.S. 422 (1935). 78Wheeling Steel Corp v. Fox, 298 U.S. 193 (1936). See also Memphis Gas Co.

v. Beeler, 315 U.S. 649, 652 (1942). 79 Adams Express Co. v. Ohio, 165 U.S. 194 (1897). 80 Alpha Cement Co. v. Massachusetts, 268 U.S. 203 (1925). 81 Cream of Wheat Co. v. County of Grand Forks, 253 U.S. 325 (1920). 82 Newark Fire Ins. Co. v. State Board, 307 U.S. 313, 318, 324 (1939). Although

the eight Justices affirming this tax were not in agreement as to the reasons to be

assigned in justification of this result, the holding appears to be in line with the

dictum uttered by Chief Justice Stone in Curry v. McCanless, 307 U.S. 357, 368

(1939), to the effect that the taxation of a corporation by a State where it does business, measured by the value of the intangibles used in its business there, does not

preclude the State of incorporation from imposing a tax measured by all its intangibles.

being entitled to a share in the net income and, upon sale of the

property, to the proceeds of the sale. 77

A State in which a foreign corporation has acquired a commercial domicile and in which it maintains its general business offices

may tax the latter’s bank deposits and accounts receivable even

though the deposits are outside the State and the accounts receivable arise from manufacturing activities in another State. 78 Similarly, a nondomiciliary State in which a foreign corporation did

business can tax the ‘‘corporate excess’’ arising from property employed and business done in the taxing State. 79 On the other hand,

when the foreign corporation transacts only interstate commerce

within a State, any excise tax on such excess is void, irrespective

of the amount of the tax. 80 A domiciliary State, however, may tax

the excess of market value of outstanding capital stock over the

value of real and personal property and certain indebtedness of a

domestic corporation even though this ‘‘corporate excess’’ arose

from property located and business done in another State and was

there taxable. Moreover, this result follows whether the tax is considered as one on property or on the franchise. 81 Also a domiciliary

State, which imposes no franchise tax on a stock fire insurance corporation, validly may assess a tax on the full amount of its paidin 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 socalled ‘jurisdiction-to-tax’ doctrine has encountered . . . ,’’ the presumption persists that intangible property is taxable by the State

of origin. 82 But a property tax on the capital stock of a domestic

company which includes in the appraisal thereof the value of coal

mined in the taxing State but located in another State awaiting

sale deprives the corporation of its property without due process of
1650 AMENDMENT 14—RIGHTS GUARANTEED

83Delaware, L. & W.P.R.R. v. Pennsylvania, 198 U.S. 341 (1905). 84Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U.S. 385 (1903). 85Stebbins v. Riley, 268 U.S. 137, 140–41 (1925). 86 199 U.S. 194 (1905). In dissenting in State Tax Comm’n v. Aldrich, 316 U.S.

174, 185 (1942), Justice Jackson asserted that a reconsideration of this principle had

become timely. 87 268 U.S. 473 (1925). See also Treichler v. Wisconsin, 338 U.S. 251 (1949); City

Bank Co. v. Schnader, 293 U.S. 112 (1934). 88 240 U.S. 635, 631 (1916). A decision rendered in 1926 which is seemingly in

conflict was Wachovia Bank & Trust Co. v. Doughton, 272 U.S. 567 (1926), in which

North Carolina was prevented from taxing the exercise of a power of appointment

through a will executed therein by a resident, when the property was a trust fund

in Massachusetts created by the will of a resident of the latter State. One of the

reasons assigned for this result was that by the law of Massachusetts the property

involved was treated as passing from the original donor to the appointee. However,

this holding was overruled in Graves v. Schmidlapp, 315 U.S. 657 (1942).

law. 83 Also void for the same reason is a state tax on the franchise

of a domestic ferry company which includes in the valuation thereof the worth of a franchise granted to the said company by another

State. 84

Transfer (Inheritance, Estate, Gift) Taxes.—Being competent to regulate exercise of the power of testamentary disposition

and the privilege of inheritance, a State may base its succession

taxes upon either the transmission or an exercise of the legal

power of transmission, of property by will or by descent, or the enjoyment of the legal privilege of taking property by devise or descent. 85 But whatever may be the justification of their power to

levy such taxes, States have consistently found themselves restricted by the rule, established as to property taxes in 1905 in

Union Transit Co. v. Kentucky, 86 and subsequently reiterated in

Frick v. Pennsylvania 87 in 1925, which precludes imposition of

transfer taxes upon tangible personal property by any State other

than the one in which such tangibles are permanently located or

have an actual situs. In the case of intangibles, however, the Court

has oscillated in upholding, then rejecting, and again currently sustaining the levy by more than one State of death taxes upon intangibles comprising the estate of a decedent.

Until 1930, transfer taxes upon intangibles levied by both the

domiciliary as well as nondomiciliary, or situs State, were with

rare exceptions approved. Thus, in Bullen v. Wisconsin, 88 the domiciliary State of the creator of a trust was held competent to levy

an inheritance tax, upon the death of the settlor, on his trust fund

consisting of stocks, bonds, and notes kept and administered in another State and as to which the settlor reserved the right to control

disposition and to direct payment of income for life, such reserved

powers being equivalent to a fee. Cognizance was taken of the fact

that the State in which these intangibles had their situs had also
AMENDMENT 14—RIGHTS GUARANTEED 1651

89 233 U.S. 434 (1914). 90 Rhode Island Trust Co. v. Doughton, 270 U.S. 69 (1926). 91 277 U.S. 1 (1928). 92First 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). 93First National Bank v. Maine, 284 U.S. 312, 330–31 (1932). 94 307 U.S. 357, 363, 366–68, 372 (1939).

taxed the trust. Levy of an inheritance tax by a nondomiciliary

State was sustained on similar grounds in Wheeler v. New York,

wherein it was held that the presence of a negotiable instrument

was sufficient to confer jurisdiction upon the State seeking to tax

its transfer. 89 On the other hand, the mere ownership by a foreign

corporation of property in a nondomiciliary State was held insufficient to support a tax by that State on the succession to shares of

stock in that corporation owned by a nonresident decedent. 90 Also

against the trend was Blodgett v. Silberman, 91 wherein the Court

defeated collection of a transfer tax by the domiciliary State by

treating coins and bank notes deposited by a decedent in a safe deposit box in another State as tangible property, albeit it conceded

that the domiciliary State could tax the transfer of books and certificates of indebtness found in that safe deposit box as well as the

decedent’s interest in a foreign partnership.

In the course of about two years following the Depression, the

Court handed down a group of four decisions which placed the

stamp of disapproval upon multiple transfer and—by inference—

other multiple taxation of intangibles. 92 Asserting, as it did in one

of these cases, that ‘‘practical considerations of wisdom, convenience and justice alike dictate the desirability of a uniform rule

confining the jurisdiction to impose death transfer taxes as to intangibles to the State of the [owner’s] domicile,’’ 93 the Court,

through consistent application of the maxim, mobilia sequuntur

personam, proceeded to deny the right of nondomiciliary States to

tax and to reject as inadequate jurisdictional claims of the latter

founded upon such bases as control, benefit, and protection or

situs. During this interval, 1930–1932, multiple transfer taxation of

intangibles came to be viewed, not merely as undesirable, but as

so arbitrary and unreasonable as to be prohibited by the due process clause.

While the Court expressly overruled only one of these four decisions condemning multiple succession taxation of intangibles, beginning with Curry v. McCanless 94 in 1939, it announced a departure from the ‘‘doctrine, of recent origin, that the Fourteenth

Amendment precludes the taxation of any interest in the same intangible in more than one State. . . .’’ Taking cognizance of the fact
1652 AMENDMENT 14—RIGHTS GUARANTEED

95 308 U.S. 313 (1939).

that this doctrine had never been extended to the field of income

taxation or consistently applied in the field of property taxation,

the Court declared that a correct interpretation of constitutional requirements would dictate the following conclusions: ‘‘From the beginning of our constitutional system control over the person at the

place of his domicile and his duty there, common to all citizens, to

contribute to the support of government have been deemed to afford an adequate constitutional basis for imposing on him a tax on

the use and enjoyment of rights in intangibles measured by their

value. . . . But when the taxpayer extends his activities with respect to his intangibles, so as to avail himself of the protection and

benefit of the laws of another State, in such a way as to bring his

person or . . . [his intangibles] within the reach of the tax gatherer

there, the reason for a single place of taxation no longer obtains,

. . . [However], the State of domicile is not deprived, by the taxpayer’s activities, elsewhere, of its constitutional jurisdiction to

tax.’’ In accordance with this line of reasoning, Tennessee, where

a decedent died domiciled, and Alabama, where a trustee, by conveyance from said decedent, held securities on specific trusts, were

both deemed competent to impose a tax on the transfer of these securities passing under the will of the decedent. ‘‘In effecting her

purposes,’’ the testatrix was viewed as having ‘‘brought some of the

legal interests which she created within the control of one State by

selecting a trustee there, and others within the control of the other

State, by making her domicile there.’’ She had found it necessary

to invoke ‘‘the aid of the law of both States and her legatees’’ were

subject to the same necessity.

These statements represented a belated adoption of the views

advanced by Chief Justice Stone in dissenting or concurring opinions which he filed in three of the four decisions during 1930–1932.

By the line of reasoning taken in these opinions, if protection or

control was extended to, or exercised over, intangibles or the person of their owner, then as many States as afforded such protection

or were capable of exerting such dominion should be privileged to

tax the transfer of such property. On this basis, the domiciliary

State would invariably qualify as a State competent to tax as

would a nondomiciliary State, so far as it could legitimately exercise control or could be shown to have afforded a measure of protection that was not trivial or insubstantial.

On the authority of Curry v. McCanless, the Court, in Pearson

v. McGraw, 95 also sustained the application of an Oregon transfer

tax to intangibles handled by an Illinois trust company and never
AMENDMENT 14—RIGHTS GUARANTEED 1653

96 307 U.S. 383 (1939). 97 Id. at 386. 98 315 U.S. 657, 660, 661 (1942). 99 17 U.S. (4 Wheat.) 316, 429 (1819). 100 319 U.S. 94 (1943).

physically present in Oregon. Jurisdiction to tax was viewed as dependent, not on the location of the property in the State, but on

control over the owner who was a resident of Oregon. In Graves v.

Elliott, 96 the Court upheld the power of New York, in computing

its estate tax, to include in the gross estate of a domiciled decedent

the value of a trust of bonds managed in Colorado by a Colorado

trust company and already taxed on its transfer by Colorado, which

trust the decedent had established while in Colorado and concerning which he had never exercised any of his reserved powers of revocation or change of beneficiaries. It was observed that ‘‘the power

of disposition of property is the equivalent of ownership, . . . and

its exercise in the case of intangibles is . . . [an] appropriate subject of taxation at the place of the domicile of the owner of the

power. Relinquishment at death, in consequence of the nonexercise

in life, of a power to revoke a trust created by a decedent is likewise an appropriate subject of taxation.’’ 97 Consistent application

of the principle enunciated in Curry v. McCanless is also discernible in two later cases in which the Court sustained the right of a

domiciliary State to tax the transfer of intangibles kept outside its

boundaries, notwithstanding that ‘‘in some instances they may be

subject to taxation in other jurisdictions, to whose control they are

subject and whose legal protection they enjoyed.’’ In Graves v.

Schmidlapp, 98 an estate tax was levied upon the value of the subject of a general testamentary power of appointment effectively exercised by a resident donee over intangibles held by trustees under

the will of a nonresident donor of the power. Viewing the transfer

of interest in the intangibles by exercise of the power of appointment as the equivalent of ownership, the Court quoted from

McCulloch v. Maryland 99 to the effect that the power to tax ‘‘‘is an

incident of sovereignty, and is coextensive with that to which it is

an incident.’’’ Again, in Central Hanover Bank Co. v. Kelly, 100 the

Court approved a New Jersey transfer tax imposed on the occasion

of the death of a New Jersey grantor of an irrevocable trust executed, and consisting of securities located in New York, and providing for the disposition of the corpus to two nonresident sons.

The costliness of multiple taxation of estates comprising intangibles is appreciably aggravated when each of several States founds

its tax not upon different events or property rights but upon an

identical basis, namely that the decedent died domiciled within its
1654 AMENDMENT 14—RIGHTS GUARANTEED

101 306 U.S. 398 (1939). Resort to the Supreme Court’s original jurisdiction was

necessary because in Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937), the

Court, proceeding on the basis that inconsistent determinations by the courts of two

States as to the domicile of a taxpayer do not raise a substantial federal constitutional question, held that the Eleventh Amendment precluded a suit by the estate

of the decedent to establish the correct State of domicile. In California v. Texas, 437

U.S. 601 (1978), a case on all points with Texas v. Florida, the Court denied leave

to file an original action to adjudicate a dispute between the two States about the

actual domicile of Howard Hughes, a number of Justices suggesting that Worcester

County no longer was good law. Subsequently, the Court reaffirmed Worcester County, Cory v. White, 457 U.S. 85 (1982), and then permitted an original action to proceed, California v. Texas, 457 U.S. 164 (1982), several Justices taking the position

that neither Worcester County nor Texas v. Florida was any longer viable.

102Kansas City Ry. v. Kansas, 240 U.S. 227 (1916); Kansas City, M. & B. R.R.

v. Stiles, 242 U.S. 111 (1916).

103Schwab v. Richardson, 263 U.S. 88 (1923).

borders. Not only is an estate then threatened with excessive contraction but the contesting States may discover that the assets of

the estate are insufficient to satisfy their claims. Thus, in Texas v.

Florida, 101 the State of Texas filed an original petition in the Supreme Court, in which it asserted that its claim, together with

those of three other States, exceeded the value of the estate, that

the portion of the estate within Texas alone would not suffice to

discharge its own tax, and that its efforts to collect its tax might

be defeated by adjudications of domicile by the other States. The

Supreme Court disposed of this controversy by sustaining a finding

that the decedent had been domiciled in Massachusetts, but intimated that thereafter it would take jurisdiction in like situations

only in the event that an estate did not exceed in value the total

of the conflicting demands of several States and that the latter

were confronted with a prospective inability to collect.

Corporate Privilege Taxes.—Since the tax is levied not on

property but on the privilege of doing business in corporate form,

a domestic corporation may be subjected to a privilege tax graduated according to paid-up capital stock, even though the latter

represents capital not subject to the taxing power of the State. 102

By the same token, the validity of a franchise tax, imposed on a

domestic corporation engaged in foreign maritime commerce and

assessed upon a proportion of the total franchise value equal to the

ratio of local business done to total business, is not impaired by the

fact that the total value of the franchise was enhanced by property

and operations carried on beyond the limits of the State. 103 However, a State, under the guise of taxing the privilege of doing an

intrastate business, cannot levy on property beyond its borders;

therefore, as applied to foreign corporations, a license tax based on
AMENDMENT 14—RIGHTS GUARANTEED 1655

104Western Union Tel. Co. v. Kansas, 216 U.S. 1 (1910); Pullman Co. v. Kansas,

216 U.S. 56 (1910); Looney v. Crane Co., 245 U.S. 178 (1917); International Paper

Co. v. Massachusetts, 246 U.S. 135 (1918). 105 Cudahy Co. v. Hinkle, 278 U.S. 460 (1929). 106St. Louis S. W. Ry. v. Arkansas, 235 U.S. 350 (1914). 107 Atlantic Refining Co. v. Virginia, 302 U.S. 22 (1937). 108 American Mfg. Co. v. St. Louis, 250 U.S. 459 (1919). Nor does a state license

tax on the production of electricity violate the due process clause because it may

be necessary, to ascertain, as an element in its computation, the amounts delivered

in another jurisdiction. Utah Power & Light Co. v. Pfost, 286 U.S. 165 (1932). 109 James v. Dravo Contracting Co., 302 U.S. 134 (1937). 110Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412 (1937). 111Lawrence v. State Tax Comm’n, 286 U.S. 276 (1932). 112Shaffer v. Carter, 252 U.S. 37 (1920); Travis v. Yale & Towne Mfg. Co., 252

U.S. 60 (1920).

authorized capital stock is void, 104 even though there be a maximum to the fee, 105 unless apportioned according to some method,

as, for example, a franchise tax based on such proportion of outstanding capital stock as it represented by property owned and

used in business transacted in the taxing State. 106 An entrance

fee, on the other hand, collected only once as the price of admission

to do an intrastate business, is distinguishable from a tax and accordingly may be levied on a foreign corporation on the basis of a

sum fixed in relation to the amount of authorized capital stock (in

this instance, a $5,000 fee on an authorized capital of

$100,000,000). 107

A municipal license tax imposed as a percentage of the receipts

of a foreign corporation derived from the sales within and without

the State of goods manufactured in the city is not a tax on business

transactions or property outside the city and therefore does not violate the due process clause. 108 But a State lacks jurisdiction to extend its privilege tax to the gross receipts of a foreign contracting

corporation for work done outside the taxing State in fabricating

equipment later installed in the taxing State. Unless the activities

which are the subject of the tax are carried on within its territorial

limits, a State is not competent to impose such a privilege tax. 109

A tax on chain stores, at a rate per store determined by the

number of stores both within and without the State is not unconstitutional as a tax in part upon things beyond the jurisdiction of the

State. 110

Individual Income Taxes.—Consistent with due process of

law, a State annually may tax the entire net income of resident individuals from whatever source received, 111 and that portion of a

nonresident’s net income derived from property owned, and from

any business, trade, or profession carried on, by him within its borders. 112 Jurisdiction, in the case of residents, is founded upon the

rights and privileges incident to domicile, and, in the case of non-
1656 AMENDMENT 14—RIGHTS GUARANTEED

113 New York ex rel. Cohn v. Graves, 300 U.S. 308 (1937). 114Maguire v. Trefy, 253 U.S. 12 (1920). 115Guaranty Trust Co. v. Virginia, 305 U.S. 19, 23 (1938). 116 New York ex. rel. Whitney v. Graves, 299 U.S. 366 (1937). 117 Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113 (1920); Bass,

Ratcliff & Gretton Ltd. v. Tax Comm’n 266 U.S. 271 (1924). The Court has recently

considered and expanded the ability of the States to use apportionment formulae to

allocate to each State for taxing purposes a fraction of the income earned by an integrated business conducted in several States as well as abroad. Moorman Mfg. Co.

v. Bair, 437 U.S. 267 (1978); Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S.

425 (1980); Exxon Corp. v. Department of Revenue, 447 U.S. 207 (1980). Exxon refused to permit a unitary business to use separate accounting techniques that divided its profits among its various functional departments to demonstrate that a

State’s formulary apportionment taxes extraterritorial income improperly. Bair,

supra, at 276–80, implied that a showing of actual multiple taxation was a necessary predicate to a due process challenge but might not be sufficient. 118 Hans Rees’ Sons v. North Carolina, 283 U.S. 123 (1931).

residents, upon dominion over either the receiver of the income or

the property or activity from which it is derived and upon the obligation to contribute to the support of a government which renders

secure the collection of such income. Accordingly, a State may tax

residents on income from rents of land located outside the State

and from interest on bonds physically without the State and secured by mortgage upon lands similarly situated 113 and from a

trust created and administered in another State, and not directly

taxable to the trustee. 114 The fact that another State has lawfully

taxed identical income in the hands of trustees operating therein

does not necessarily destroy a domiciliary State’s right to tax the

receipt of income by a resident beneficiary. ‘‘The taxing power of a

state is restricted to her confines and may not be exercised in respect of subjects beyond them.’’ 115 Likewise, even though a nonresident does no business within a State, the latter may tax the

profits realized by the nonresident upon his sale of a right appurtenant to membership in a stock exchange within its borders. 116

Corporate Income Taxes: Foreign Corporations.—A tax

based on the income of a foreign corporation may be determined by

allocating to the State a proportion of the total. 117 However, such

a basis may work an unconstitutional result if the income thus attributed to the State is out of all appropriate proportion to the

business there transacted by the corporation. Evidence may always

be submitted which tends to show that a State has applied a method which, albeit fair on its face, operates so as to reach profits

which are in no sense attributable to transactions within its

jurisdication. 118 Nevertheless, a foreign corporation is in error

when it contends that due process is denied by a franchise tax

measured by income, which is levied, not upon net income from

intrastate business alone, but on net income justly attributable to

all classes of business done within the State, interstate and foreign,
AMENDMENT 14—RIGHTS GUARANTEED 1657

119Matson Nav. Co. v. State Board, 297 U.S. 441 (1936). 120Wisconsin v. J.C. Penney Co., 311 U.S. 435, 448–49 (1940). Dissenting, Justice Roberts, along with Chief Justice Hughes and Justices McReynolds and Reed,

stressed the fact that the use and disbursement by the corporation at its home office

of income derived from operations in many States does not depend on and cannot

be controlled by, any law of Wisconsin. The act of disbursing such income as dividends, he contended is ‘‘one wholly beyond the reach of Wisconsin’s sovereign power,

one which it cannot effectively command, or prohibit or condition.’’ The assumption

that a proportion of the dividends distributed is paid out of earnings in Wisconsin

for the year immediately preceding payment is arbitrary and not borne out by the

facts. Accordingly, ‘‘if the exaction is an income tax in any sense it is such upon

the stockholders (many of whom are nonresidents) and is obviously bad.’’ See also

Wisconsin v. Minnesota Mining Co., 311 U.S 452 (1940). 121 Equitable Life Soc’y v. Pennsylvania, 238 U.S. 143 (1915). 122Provident Savings Ass’n v. Kentucky, 239 U.S. 103 (1915). 123State Bd. of Ins. v. Todd Shipyards, 370 U.S. 451 (1962).

as well as intrastate business. 119 Inasmuch as the privilege granted by a State to a foreign corporation of carrying on local business

supports a tax by that State on the income derived from that business, it follows that the Wisconsin privilege dividend tax, consistent with the due process clause, may be applied to a Delaware corporation, having its principal offices in New York, holding its meetings and voting its dividends in New York, and drawing its dividend checks on New York bank accounts. The tax is imposed on the

‘‘privilege of declaring and receiving dividends’’ out of income derived from property located and business transacted in the State,

equal to a specified percentage of such dividends, the corporation

being required to deduct the tax from dividends payable to resident

and nonresident shareholders and pay it over to the State. 120

Insurance Company Taxes.—A privilege tax on the gross

premiums received by a foreign life insurance company at its home

office for business written in the State does not deprive the company of property without due process, 121 but a tax is bad when the

company has withdrawn all its agents from the State and has

ceased to do business, merely continuing to be bound to policyholders resident therein and receiving at its home office the renewal premiums. 122 Also violative of due process is a state gross

premium tax imposed on a nonresident firm, doing business in the

taxing jurisdiction, which purchased coverage of property located

therein from an unlicensed out-of-state insurer which consummated the contract, serviced the policy, and collected the premiums outside that taxing jurisdiction. 123 Distinguishable therefrom is the following tax which was construed as having been levied, not upon annual premiums nor upon the privilege merely of

doing business during the period that the company actually was

within the State, but upon the privilege of entering and engaging

in business, the percentage ‘‘on the annual premiums to be paid
1658 AMENDMENT 14—RIGHTS GUARANTEED

124 Continental Co. v. Tennessee, 311 U.S. 5, 6 (1940) (emphasis added). 125Palmetto Ins. Co. v. Connecticut, 272 U.S. 295 (1926). 126St. Louis Compress Co. v. Arkansas, 260 U.S. 346 (1922). 127 Connecticut General Co. v. Johnson, 303 U.S. 77 (1938). 128Metropolitan Life Ins. Co. v. City of New Orleans, 205 U.S. 395 (1907). 129Orleans Parish v. New York Life Ins. Co., 216 U.S 517 (1910). 130Liverpool & L. & G. Ins. Co. v. Orleans Assessors, 221 U.S. 346 (1911).

throughout the life of the policies issued.’’ By reason of this difference a State may continue to collect such tax even after the company’s withdrawal from the State. 124

A State which taxes the insuring of property within its limits

may lawfully extend its tax to a foreign insurance company which

contracts with an automobile sales corporation in a third State to

insure its customers against loss of cars purchased through it, so

far as the cars go into possession of a purchaser within the taxing

State. 125 On the other hand, a foreign corporation admitted to do

a local business, which insures its property with insurers in other

States who are not authorized to do business in the taxing State,

cannot constitutionally be subjected to a 5% tax on the amount of

premiums paid for such coverage. 126 Likewise a Connecticut life insurance corporation, licensed to do business in California, which

negotiated reinsurance contracts in Connecticut, received payment

of premiums thereon in Connecticut, and was there liable for payment of losses claimed thereunder, cannot be subjected by California to a privilege tax measured by gross premiums derived from

such contracts, notwithstanding that the contracts reinsured other

insurers authorized to do business in California and protected policies effected in California on the lives of residents therein. The tax

cannot be sustained whether as laid on property, business done, or

transactions carried on, within California, or as a tax on a privilege

granted by that State. 127

When policy loans to residents are made by a local agent of a

foreign insurance company, in the servicing of which notes are

signed, security taken, interest collected, and debts are paid within

the State, such credits are taxable to the company, notwithstanding

that the promissory notes evidencing such credits are kept at the

home office of the insurer. 128 But when a resident policyholder’s

loan is merely charged against the reserve value of his policy,

under an arrangement for extinguishing the debt and interest

thereon by deduction from any claim under the policy, such credit

is not taxable to the foreign insurance company. 129 Premiums due

from residents on which an extension has been granted by foreign

companies also are credits on which the latter may be taxed by the

State of the debtor’s domicile; 130 the mere fact that the insurers
AMENDMENT 14—RIGHTS GUARANTEED 1659

131Orient Ins. Co. v. Assessors of Orleans, 221 U.S. 358 (1911). 132Turpin v. Lemon, 187 U.S. 51, 58 (1902); Glidden v. Harrington, 189 U.S.

255 (1903). 133McMillen v. Anderson, 95 U.S. 37, 42 (1877). 134 Bell’s Gap R.R. v. Pennsylvania, 134 U.S. 232, 239 (1890). 135 Hodge v. Muscatine County, 196 U.S. 276 (1905).

charge these premiums to local agents and give no credit directly

to policyholders does not enable them to escape this tax. 131

Procedure in Taxation

Generally.—Exactly what due process requires in the assessment and collection of general taxes has never been decided by the

Supreme Court. While it was held that ‘‘notice to the owner at

some stage of the proceedings, as well as an opportunity to defend,

is essential’’ for imposition of special taxes, it has also ruled that

laws for assessment and collection of general taxes stand upon a

different footing and are to be construed with the utmost liberality,

even to the extent of acknowledging that no notice whatever is necessary. 132 Due process of law as applied to taxation does not mean

judicial process; 133 neither does it require the same kind of notice

as is required in a suit at law, or even in proceedings for taking

private property under the power of eminent domain. 134 If a taxpayer is given an opportunity to test the validity of a tax at any

time before it is final, whether the proceedings for review take

place before a board having a quasi-judicial character, or before a

tribunal provided by the State for the propose of determining such

questions, due process of law is not denied. 135

Notice and Hearing in Relation to Taxes.—‘‘Of the different kinds of taxes which the State may impose, there is a vast

number of which, from their nature, no notice can be given to the

taxpayer, nor would notice be of any possible advantage to him,

such as poll taxes, license taxes (not dependent upon the extent of

his business), and generally, specific taxes on things, or persons, or

occupations. In such cases the legislature, in authorizing the tax,

fixes its amount, and that is the end of the matter. If the tax be

not paid, the property of the delinquent may be sold, and he be

thus deprived of his property. Yet there can be no question that the

proceeding is due process of law, as there is no inquiry into the

weight of evidence, or other element of a judicial nature, and nothing could be changed by hearing the taxpayer. No right of his is,

therefore, invaded. Thus, if the tax on animals be a fixed sum per

head, or on articles a fixed sum per yard, or bushel, or gallon, there

is nothing the owner can do which can affect the amount to be collected from him. So, if a person wishes a license to do business of

a particular kind, or at a particular place, such as keeping a hotel
1660 AMENDMENT 14—RIGHTS GUARANTEED

136 Hagar v. Reclamation Dist., 111 U.S. 701, 709–10 (1884). 137 Id. at 710. 138McMillen v. Anderson, 95 U.S. 37, 42 (1877). 139State Railroad Tax Cases, 92 U.S. 575, 610 (1876). 140 Nickey v. Mississippi, 292 U.S. 393, 396 (1934). See also Clement Nat’l Bank

v. Vermont, 231 U.S. 120 (1913). 141Pittsburgh C. C. & St. L. Ry. v. Backus, 154 U.S. 421 (1894).

or a restaurant, or selling liquors, or cigars, or clothes, he has only

to pay the amount required by law and go into the business. There

is no need in such cases for notice or hearing. So, also, if taxes are

imposed in the shape of licenses for privileges, such as those on foreign corporations for doing business in the State, or on domestic

corporations for franchises, if the parties desire the privilege, they

have only to pay the amount required. In such cases there is no

necessity for notice or hearing. The amount of the tax would not

be changed by it.’’ 136

Notice and Hearing in Relation to Assessments.—‘‘But

where a tax is levied on property not specifically, but according to

its value, to be ascertained by assessors appointed for that purpose

upon such evidence as they may obtain, a different principle comes

in. The officers in estimating the value act judicially; and in most

of the States provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at

designated periods provided by law to hear complaints respecting

the justice of the assessments. The law in prescribing the time

when such complaints will be heard, gives all the notice required,

and the proceedings by which the valuation is determined, though

it may be followed, if the tax be not paid, by a sale of the

delinquent’s property, is due process of law.’’ 137

Nevertheless, it has never been considered necessary to the validity of a tax that the party charged shall have been present, or

had an opportunity to be present, in some tribunal when he was

assessed. 138 Where a tax board has its time of sitting fixed by law

and where its sessions are not secret, no obstacle prevents the appearance of any one before it to assert a right or redress a wrong

and in the business of assessing taxes, this is all that can be reasonably asked. 139 Nor is there any constitutional command that

notice of an assessment as well as an opportunity to contest it be

given in advance of the assesment. It is enough that all available

defenses may be presented to a competent tribunal during a suit

to collect the tax and before the demand of the State for remittance

becomes final. 140 A hearing before judgment, with full opportunity

to submit evidence and arguments being all that can be adjudged

vital, it follows that rehearings and new trials are not essential to

due process of law. 141 One hearing is sufficient to constitute due
AMENDMENT 14—RIGHTS GUARANTEED 1661

142Michigan Central R.R. v. Powers, 201 U.S. 245, 302 (1906). 143Pittsburgh C. C. & St. L. Ry. v. Board of Pub. Works, 172 U.S. 32, 45 (1898). 144St. 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). 145Tonawanda v. Lyon, 181 U.S. 389, 391 (1901). 146Londoner v. Denver, 210 U.S. 373 (1908). 147Withnell 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). 148Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 168, 175 (1896); Browning v. Hooper, 269 U.S. 396, 405 (1926). 149 Utley v. Petersburg, 292 U.S. 106, 109 (1934); French v. Barber Asphalt Paving Co., 181 U.S. 324, 341 (1901). See also Soliah v. Heskin, 222 U.S. 522 (1912). 150 Hibben v. Smith, 191 U.S. 310, 321 (1903).

process, 142 and the requirements of due process are also met if a

taxpayer, who had no notice of a hearing, does receive notice of the

decision reached there and is privileged to appeal it and, on appeal,

to present evidence and be heard on the valuation of his property. 143

However, when special assessments are made by a political

subdivision, a taxing board or court, according to special benefits,

the property owner is entitled to be heard as to the amount of his

assessments and upon all questions properly entering into that determination. 144 The hearing need not amount to a judicial inquiry, 145 but a mere opportunity to submit objections in writing,

without the right of personal appearance, is not sufficient. 146 If an

assessment for a local improvement is made in accordance with a

fixed rule prescribed by legislative act, the property owner is not

entitled to be heard in advance on the question of benefits. 147 On

the other hand, if the area of the assessment district was not determined by the legislature, a landowner does have the right to be

heard respecting benefits to his property before it can be included

in the improvement district and assessed, but due process is not

denied if, in the absence of actual fraud or bad faith, the decision

of the agency vested with the initial determination of benefits is

made final. 148 The owner has no constitutional right to be heard

in opposition to the launching of a project which may end in assessment, and once his land has been duly included within a benefit

district, the only privilege which he thereafter enjoys is to a hearing upon the apportionment, that is, the amount of the tax which

he has to pay. 149 Nor can he rightfully complain because the statute renders conclusive, after a hearing, the determination as to apportionment by the same body which levied the assessment. 150
1662 AMENDMENT 14—RIGHTS GUARANTEED

151 Hancock v. Muskogee, 250 U.S. 454, 458 (1919). Likewise, a taxpayer does

not have a right to a hearing before a state board of equalization preliminary to issuance by it of an order increasing the valuation of all property in a city by 40%.

Bi-Metallic Co. v. Colorado, 239 U.S. 441 (1915). 152 City of Detroit v. Parker, 181 U.S. 399 (1901). 153Paulsen v. Portland, 149 U.S. 30, 38 (1893). 154 Bankers Trust Co. v. Blodgett, 260 U.S. 647 (1923). 155 National Safe Deposit Co. v. Stead, 232 U.S. 58 (1914). 156Pierce Oil Corp. v. Hopkins, 264 U.S. 137 (1924). 157 Carstairs v. Cochran, 193 U.S. 10 (1904); Hannis Distilling Co. v. Baltimore,

216 U.S. 285 (1910). 158Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 75, 76 (1920).

More specifically, where the mode of assessment resolves itself

into a mere mathematical calculation, there is no necessity for a

hearing. 151 Statutes and ordinances providing for the paving and

grading of streets, the cost thereof to be assessed on the front foot

rule, do not, by their failure to provide for a hearing or review of

assessments, generally deprive a complaining owner of property

without due process of law. 152 In contrast, when an attempt is

made to cast upon particular property a certain proportion of the

construction cost of a sewer not calculated by any mathematical

formula, the taxpayer has a right to be heard. 153

Collection of Taxes.—To reach property which has escaped

taxation, a State may tax estates of decedents for a period prior to

death and grant proportionate deductions for all prior taxes which

the personal representative can prove to have been paid. 154 Collection of an inheritance tax also may be expedited by a statute requiring the sealing of safe deposit boxes for at least ten days after

the death of the renter and obliging the lessor to retain assets

found therein sufficient to pay the tax that may be due the

State. 155 Moreover, with a view to achieving a like result in the

case of gasoline taxes, a State may compel retailers to collect such

taxes from consumers and, under penalty of a fine for delinquency,

to remit monthly the amounts thus collected. 156 Likewise, a tax on

the tangible personal property of a nonresident owner may be collected from the custodian or possessor of such property, and the

latter, as an assurance of reimbursement, may be granted a lien

on such property. 157 In collecting personal income taxes, however,

most States require employers to deduct and withhold the tax from

the wages of employees, but the duty thereby imposed on the employer has never been viewed as depriving him of property without

due process of law, nor has the adjustment of his system of accounting and paying salaries which withholding entails been

viewed as an unreasonable regulation of the conduct of his business. 158
AMENDMENT 14—RIGHTS GUARANTEED 1663

159 International Harvester Corp. v. Goodrich, 350 U.S. 537 (1956). 160League v. Texas, 184 U.S. 156 (1902). 161Palmer v. McMahon, 133 U.S. 660, 669 (1890). 162Scottish Union & Nat’l Ins. Co. v. Bowland, 196 U.S. 611 (1905). 163King v. Mullins, 171 U.S. 404 (1898); Chapman v. Zobelein, 237 U.S. 135

(1915). 164Leigh v. Green, 193 U.S. 79 (1904). 165Davidson v. City of New Orleans, 96 U.S. 97, 107 (1878). 166Dewey v. Des Moines, 173 U.S. 193 (1899).

Moreover, no unconstitutional deprivation of the property

rights of vendors of trucks, sold under conditional sales contract to

a carrier, results when a State asserts against such trucks a prior

lien for highway use taxes levied against the carrier and (1) accruing from the operation by the carrier of trucks, other than those

sold by the vendors, either before or during the time the carrier operated the vendors’ trucks, or (2) arising from assessments against

the carrier, after vendors repossessed their trucks, and based upon

the carrier’s operations preceding such repossession. A vendor is

not privileged to contend that the lien asserted must be limited to

taxes attributable solely to operation of its own trucks; for the wear

on the highways occasioned by the carrier’s operation is in no way

altered by the vendor’s retention of title. 159

As a State may provide in advance that taxes shall bear interest from the time they become due, it may with equal validity stipulate that taxes which have become delinquent shall bear interest

from the time the delinquency commenced. A State may adopt new

remedies for the collection of taxes and apply these remedies to

taxes already delinquent. 160 After liability of a taxpayer has been

fixed by appropriate procedure, collection of a tax by distress and

seizure of his person does not deprive him of liberty without due

process of law. 161 Nor is a foreign insurance company denied due

process of law when its personal property is distrained to satisfy

unpaid taxes. 162

The requirements of due process are fulfilled by a statute

which, in conjunction with affording an opportunity to be heard,

provides for the forfeiture of titles to land for failure to list and pay

taxes thereon for certain specified years. 163 No less constitutional,

as a means of facilitating collection, is an in rem proceeding, to

which the land alone is made a party, whereby tax liens on land

are foreclosed and all preexisting rights or liens are eliminated by

a sale under a decree. 164 On the other hand, while the conversion

of an unpaid special assessment into both a personal judgment

against the owner as well as a charge on the land is consistent

with the Fourteenth Amendment, 165 a judgment imposing personal

liability against a nonresident taxpayer over whom the state court

acquired no jurisdiction is void. 166 Apart from such restraints,
1664 AMENDMENT 14—RIGHTS GUARANTEED

167League v. Texas, 184 U.S. 156, 158 (1902). See also Straus v. Foxworth, 231

U.S. 162 (1913). 168Londoner v. Denver, 210 U.S. 373 (1908). See also Kentucky Railroad Tax

Cases, 115 U.S. 321, 331 (1885); Winona & St. Peter Land Co. v. Minnesota, 159

U.S. 526, 537 (1895); Merchants Bank v. Pennsylvania, 167 U.S. 461, 466 (1897);

Glidden v. Harrington, 189 U.S. 255 (1903). 169 Corry v. Baltimore, 196 U.S. 466, 478 (1905). 170Leigh v. Green, 193 U.S. 79, 92–93 (1904). 171Ontario Land Co. v. Yordy, 212 U.S. 152 (1909). See also Longyear v. Toolan,

209 U.S. 414 (1908). 172 Covey v. Town of Somers, 351 U.S. 141 (1956).

however, a State is free to adopt new remedies for the collection

of taxes and even to apply new remedies to taxes already delinquent. 167

Sufficiency and Manner of Giving Notice.—Notice, insofar

as it is required, may be either personal, or by publication, or by

statute fixing the time and place of hearing. 168 A state statute,

consistent with due process, may designate a corporation as the

agent of a nonresident stockholder to receive notice and to represent him in proceedings for correcting assessment. 169 Also

‘‘where the State . . . [desires] to sell land for taxes upon proceedings to enforce a lien for the payment thereof, it may proceed directly against the land within the jurisdiction of the court, and a

notice which permits all interested, who are ‘so minded,’ to ascertain that it is to be subjected to sale to answer for taxes, and to

appear and be heard, whether to be found within the jurisdiction

or not, is due process of law within the Fourteenth Amendment. . .’’ 170 A description, even though it not be technically correct, which identifies the land will sustain an assessment for taxes

and a notice of sale therefor when delinquent. If the owner knows

that the property so described is his, he is not, by reason of the insufficient description, deprived of his property without due process.

Where tax proceedings are in rem, owners are bound to take notice

thereof, and to pay taxes on their property, even if assessed to unknown or other persons, and if an owner stands by and sees his

property sold for delinquent taxes, he is not thereby wrongfully deprived of his property. 171

However, due process was deemed not to have been accorded

an incompetent taxpayer, for whom a guardian had not yet been

appointed, but who was well known to town officials to be financially responsible, when, in accordance with statutory procedure,

notice of a real property tax delinquency was mailed to her and

published in local papers as well as posted in the town post office,

and thereafter, without appearance on her part, the property was

foreclosed and deeded to the town. 172 On the other hand, due process was not denied to appellants when, through dereliction of their
AMENDMENT 14—RIGHTS GUARANTEED 1665

173 Nelson v. New York City, 352 U.S. 103 (1956). 174 Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930). 175 Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907). 176 Carpenter v. Shaw, 280 U.S. 363 (1930). See also Ward v. Love County, 253

U.S. 17 (1920). 177McKesson Corp. v. Florida Alcohol & Tobacco Div., 496 U.S. 18 (1990). 178 Id. 179Farncomb v. Denver, 252 U.S. 7 (1920).

bookkeeper, they were not apprised of the receipt of mailed notices,

and thus were unable to avert foreclosure of liens for unpaid water

charges outstanding against two parcels of land held by them in

trust; this conclusion is unaffected by the disparity between the

value of the land taken and the amount owed nor by the fact that

the city, in one instance, retained the proceeds of sale after lapse

of time to redeem. Having issued appropriate notices, the city cannot be held responsible for the negligence of the bookkeeper and

the managing trustee in overlooking arrearages on tax bills, nor is

it obligated to inquire why appellants regularly paid real estate

taxes on their property. 173

Sufficiency of Remedy.—When no other remedy is available,

due process is denied by a judgment of a state court withholding

a decree in equity to enjoin collection of a discriminatory tax. 174

Requirements of due process are similarly violated by a statute

which limits a taxpayer’s right to challenge an assessment to cases

of fraud or corruption, 175 and by a state tribunal which prevents

a recovery of taxes imposed in violation of the Constitution and

laws of the United States by invoking a state law limiting suits to

recover taxes alleged to have been assessed illegally to taxes paid

at the time and in the manner provided by said law. 176 In this as

in other areas, the state must provide procedural safeguards

against imposition of an unconstitutional tax. These procedures

need not apply predeprivation, but a state that denies

predeprivation remedy by requiring that tax payments be made before objections are heard must provide a postdeprivation remedy. 177 In the case of a tax held unconstitutional as a discrimination against interstate commerce and not invalidated in its entirety, the state has several alternatives for equalizing incidence of

the tax: it may pay a refund equal to the difference between the

tax paid and the tax that would have been due under rates afforded to in-state competitors; it may assess and collect back taxes

from those competitors; or it may combine the two approaches. 178

Laches.—Persons failing to avail themselves of an opportunity

to object and be heard cannot thereafter complain of assessments

as arbitrary and unconstitutional. 179 Likewise a car company,

which failed to report its gross receipts as required by statute, has
1666 AMENDMENT 14—RIGHTS GUARANTEED

180Pullman Co. v. Knott, 235 U.S. 23 (1914). 181For analysis of the law of eminent domain, see supra, pp. 1369–95. 182 262 U.S. 390 (1923). Justices Holmes and Sutherland entered a dissent, applicable to Meyer, in Bartels v. Iowa, 262 U.S. 404, 412 (1923). 183 268 U.S. 510 (1925). 184Meyer v. Nebraska, 262 U.S. 390, 400 (1923); Pierce v. Society of Sisters, 268

U.S. 510, 531, 533, 534 (1928).

no further right to contest the state comptroller’s estimate of those

receipts and his adding thereto the 10 percent penalty permitted

by law. 180

Eminent Domain

The due process clause of the Fourteenth Amendment has been

held to require that when a state or local governmental body, or

a private body exercising delegated power, takes private property

it must provide just compensation and take only for a public purpose. Applicable principles are discussed under the Fifth Amendment. 181

Substantive Due Process and Noneconomic Liberty

At the heyday of economic substantive due process, the Court

ruled in two cases which, while they also involved property, promised substantially to extend judicial supervision of the reasonableness of legislation. This promise was not realized, but later cases

brought forth an avalanche of exposition. In Meyer v. Nebraska, 182

the Court struck down a state law forbidding the teaching in any

school in the State, public or private, of any modern foreign language, other than English, to any child who had not successfully

finished the eighth grade; in Pierce v. Society of Sisters, 183 it declared unconstitutional a state law which required public school

education of children aged eight to sixteen. Both cases involved, as

noted, property rights which the Court asserted were protected; the

statute in Meyer interfered with the occupation of a teacher of German who had been convicted of teaching that language, while the

private school plaintiffs in Pierce were threatened with destruction

of their businesses and the values of their properties. 184 Yet in

both cases the Court also permitted these persons adversely affected in their property interests to represent the interests of parents and children in the assertion of other aspects of ‘‘liberty’’ of

which they could not be denied.

‘‘Without doubt,’’ Justice McReynolds said, liberty ‘‘denotes not

merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of

life, to acquire useful knowledge, to marry, establish a home and

bring up children, to worship God according to the dictates of his
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185 262 U.S. at 399. 186 Id. at 400. 187 268 U.S. at 534–35. 188 E.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905); Zucht v. King, 260 U.S.

174 (1922) (compulsory vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sexual sterilization of inmates of state institutions found to be afflicted with hereditary forms

of insanity or imbecility); Minnesota v. Probate Court ex rel. Pearson, 309 U.S. 270

(1940) (institutionalization of habitual sexual offenders as psychopathic personalities).189See also Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (marriage and

procreation are among ‘‘the basic civil rights of man’’); Prince v. Massachusetts, 321

U.S. 158, 166 (1944) (care and nurture of children by the family are within ‘‘the private realm of family life which the state cannot enter’’). 190 388 U.S. 1, 12 (1967). 191 Indeed, in Griswold v. Connecticut, 381 U.S. 479, 482 (1965), Justice Douglas

reinterpreted Meyer and Pierce as having been based on the First Amendment. Note

that in Epperson v. Arkansas, 393 U.S. 97, 105 (1968), and Tinker v. Des Moines

School District, 393 U.S. 503, 506–07 (1969), Justice Fortas for the Court approvingly noted the due process basis of Meyer and Pierce while deciding both cases on

First Amendment grounds. 192 367 U.S. 497, 522, 539–45 (1961). Justice Douglas, also dissenting, relied on

a due process analysis, which began with the texts of the first eight Amendments

own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’’ 185 The right of the parents to have their children instructed in a foreign language was ‘‘within the liberty of the

[Fourteenth] Amendment.’’ 186 Meyer was relied on in Pierce by the

Court in asserting that the statute there ‘‘unreasonably interferes

with the liberty of parents and guardians to direct the upbringing

and education of children under their control. . . . The child is not

the mere creature of the State; those who nurture him and direct

his destiny have the right, coupled with the high duty, to recognize

and prepare him for additional obligations.’’ 187

Other assertions of the liberty to be free from compulsory state

provisions proved unsuccessful, 188 although dicta in these cases

continued to broadly define liberty. 189 And in Loving v. Virginia, 190 a statute prohibiting interracial marriage was held to

deny due process. Marriage was termed ‘‘one of the ‘basic civil

rights of man’’’ and a ‘‘fundamental freedom.’’ ‘‘The freedom to

marry has long been recognized as one of the vital personal rights

essential to the orderly pursuit of happiness by free men.’’ The classification of marriage rights on a racial basis was ‘‘unsupportable.’’

But the expansion of the Bill of Rights to restrict state action, especially the religion and free expression provisions of the First

Amendment, afforded the Court an opportunity to base certain decisions voiding state policies on these grounds rather than on due

process. 191

In Poe v. Ullman, 192 Justice Harlan advocated the application

of a due process standard of reasonableness—the same standard he
1668 AMENDMENT 14—RIGHTS GUARANTEED

as the basis of fundamental due process and continued into the ‘‘emanations’’ from

this as also protected. Id. at 509. 193 ‘‘We do not sit as a super-legislature to determine the wisdom, need, and

propriety of laws that touch economic problems, business affairs, or social conditions.’’ Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (opinion of Court by Justice Douglas). 194Supra, pp. 1504–05. 195 381 U.S. at 499, 502. 196 Eisenstadt v. Baird, 405 U.S. 438 (1972), is the principal case. See also Stanley v. Illinois, 405 U.S. 645 (1972). 197 478 U.S. 186 (1986).

would have applied to test economic legislation—to a Connecticut

statute banning the use of contraceptives, even by married couples.

According to the Justice, due process is limited neither to procedural guarantees nor restricted to the rights enumerated in the

first eight Amendments of the Bill of Rights, but is rather ‘‘a discrete concept which subsists as an independent guaranty of liberty

and procedural fairness, more general and inclusive than the specific prohibitions.’’ The liberty protected by the clause ‘‘is a rational

continuum which, broadly speaking, includes a freedom from all

substantial arbitrary impositions and purposeless restraints . . .

and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.’’ Applying a lengthy analysis, he concluded that the statute infringed

upon a fundamental liberty without the showing of a justification

which would support the intrusion. Yet, when the same issue returned to the Court, a majority of the Justices, rejecting reliance

on substantive due process, 193 decided it on the basis of the statute’s invasion of privacy, a ‘‘penumbral’’ right protected by a matrix

of constitutional provisions. 194 The analysis, however, approached

the matter in terms, and in reliance on cases, reminiscent of substantive due process, although the separate concurrences of Justices Harlan and White specifically based on substantive due process, 195 indicates that the majority’s position was at least definitionally different. Subsequent cases, functionally grounded in equal

protection analysis, relied in great degree upon a view of rationality and reasonableness not too different from Justice Harlan’s dissent in Poe v. Ullman. 196

The Court remains divided over how broadly to define a liberty

interest. In Bowers v. Hardwick, 197 for example, the Court majority found no right to engage in homosexual sodomy, and rejected

the dissent’s suggestion that focus should instead be placed on a

right to privacy and autonomy in matters of sexual intimacy. Similar disagreement over the appropriate level of generality for definition of a liberty interest was evident in Michael H. v. Gerald D.,
AMENDMENT 14—RIGHTS GUARANTEED 1669

198 491 U.S. 110 (1989). Five Justices agreed that a liberty interest was implicated, but the Court ruled that California’s procedures for establishing paternity did

not unconstitutionally impinge on that interest. 199 Id. at 128 n.6. 200 Id. at 142. 201 Roe v. Wade, 410 U.S. 113 (1973). A companion case was Doe v. Bolton, 410

U.S. 179 (1973). The opinion by Justice Blackman was concurred in by Justices

Douglas, Brennan, Stewart, Marshall, and Powell, and Chief Justice Burger. Justices White and Rehnquist dissented, id. at 171, 221, arguing that the Court should

follow the traditional due process test of determining whether a law has a rational

relation to a valid state objective and that so judged the statute was valid. Justice

Rehnquist was willing to consider an absolute ban on abortions even when the

mother’s life is in jeopardy to be a denial of due process, id. at 173, while Justice

White left the issue open. Id. at 223.

involving the rights of an adulterous biological father to establish

paternity and to associate with his child. 198 Justice Scalia, joined

only by Chief Justice Rehnquist in this part of the plurality decision, argued for ‘‘the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be

identified.’’ 199 Dissenting Justice Brennan, joined by two others,

rejected the emphasis on tradition, and argued instead that the

Court should ‘‘ask whether the specific parent-child relationship

under consideration is close enough to the interests that we already

have protected [as] an aspect of ‘liberty.’ ’’ 200 The resurgence of

substantive due process reasoning became evident upon the Court’s

confrontation with cases raising the constitutionality of laws proscribing or limiting abortions.

Abortion.—Laws limiting or prohibiting abortions in practically all the States, the District of Columbia, and the territories

were invalidated by a ruling recognizing a right of personal privacy

protected by the due process clause that included a qualified right

of a woman to determine whether or not to bear a child. On the

basis of its analysis of the competing individual rights and state interests, the Court in Roe v. Wade 201 discerned a three-stage balancing of rights and interests extending over the full nine-month

term of pregnancy.

‘‘(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,
1670 AMENDMENT 14—RIGHTS GUARANTEED

202 Roe v. Wade, 410 U.S. 113, 164–65 (1973). 203 Id. at 129–47. 204 Id. at 156–59. 205 Id. at 152–53. 206 Id. 207 Id. at 152, 155–56. The ‘‘compelling state interest’’ test in equal protection

cases is reviewed infra, pp. 1809–14. 208 410 U.S. at 147–52, 159–63.

regulate, and even proscribe, abortion except where it is necessary,

in appropriate medical judgment, for the preservation of the life or

health of the mother.’’ 202

A lengthy history of the medical and legal views of abortion apparently convinced the Court that the prohibition of abortion

lacked the solid foundation necessary to preserve such prohibitions

from constitutional review. 203 Similarly, a review of the concept of

‘‘person’’ as protected in the due process clause and in other provisions of the Constitution established to the Court’s satisfaction that

the word ‘‘person’’ did not include the unborn, and therefore that

the unborn lacked federal constitutional protection. 204 Without

treating the question in more than summary fashion, the Court announced that ‘‘a right of personal privacy, or a guarantee of certain

areas or zones of privacy, does exist in the Constitution’’ and that

it is ‘‘founded in the Fourteenth Amendment’s concept of personal

liberty and restrictions upon state action.’’ 205 ‘‘This right of privacy

. . . is broad enough to encompass a woman’s decision whether or

not to terminate her pregnancy.’’ 206 Moreover, this right of privacy

is ‘‘fundamental’’ and, drawing upon the strict standard of review

in equal protection litigation, the Court held that the due process

clause required that the regulations limiting this fundamental

right may be justified only by a ‘‘compelling state interest’’ and

must be narrowly drawn to express only the legitimate state interests at stake. 207 Assessing the possible interests of the States, the

Court rejected as unsupported in the record and ill-served by the

laws in question justifications relating to the promotion of morality

and the protection of women from the medical hazards of abortions.

The state interest in protecting the life of the fetus was held to be

limited by the lack of a social consensus with regard to the issue

when life begins. Two valid state interests were recognized, however. ‘‘[T]he State does have an important and legitimate interest

in preserving and protecting the health of the pregnant woman . . .

[and] it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate

and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes

‘compelling.’ ’’ 208
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209 Id. at 163. 210 Id. 211 Id. at 163–164. A fetus becomes ‘‘viable’’ when it is ‘‘potentially able to live

outside the mother’s womb, albeit with artificial aid. Viability is usually placed at

about seven months (28 weeks) but may occur earlier, even at 24 weeks.’’ Id. at 160

(footnotes omitted). 212Doe v. Bolton, 410 U.S. 179 (1973). 213 Id. at 192–200. 214 Id. at 200. The clause is Article IV, § 2. See supra, pp. 867–77.

This approach led to the three-stage concept quoted above. Because medical data indicated that abortion prior to the end of the

first trimester is relatively safe, the mortality rate being lower

than the rates for normal childbirth, and because the fetus has no

capability of meaningful life outside the mother’s womb, the State

has no ‘‘compelling interest’’ in the first trimester and ‘‘the attending physician, in consultation with his patient, is free to determine,

without regulation by the State, that, in his medical judgment, the

patient’s pregnancy should be terminated.’’ 209 In the intermediate

trimester, the danger to the woman increases and the State may

therefore regulate the abortion procedure ‘‘to the extent that the

regulation reasonably relates to the preservation and protection of

maternal health,’’ but the fetus is still not able to survive outside

the womb, and consequently the actual decision to have an abortion

cannot be otherwise impeded. 210 ‘‘With respect to the State’s important and legitimate interest in potential life, the ‘compelling’

point is at viability. This is so because the fetus then presumably

has the capability of meaningful life outside the mother’s womb.

State regulation protective of fetal life after viability thus has both

logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe

abortion during that period, except when it is necessary to preserve

the life or health of the mother.’’ 211

In a companion case, the Court struck down three procedural

provisions of a permissive state abortion statute. 212 These required

that the abortion be performed in a hospital accredited by a private

accrediting organization, that the operation be approved by the

hospital staff abortion committee, and that the performing physician’s judgment be confirmed by the independent examination of

the patient by two other licensed physicians. These provisions were

held not to be justified by the State’s interest in maternal health

because they were not reasonably related to that interest. 213 And

a residency provision was struck down as violating the privileges

and immunities clause. 214 But a clause making the performance of

an abortion a crime except when it is based upon the doctor’s ‘‘best

clinical judgment that an abortion is necessary’’ was upheld against

vagueness attack and was further held to benefit women seeking
1672 AMENDMENT 14—RIGHTS GUARANTEED

215 410 U.S. at 191–92. ‘‘[T]he medical judgment may be exercised in the light

of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health.’’ Id.

at 192. Presumably this discussion applies to the Court’s ruling in Roe holding that

even in the third trimester the woman may not be forbidden to have an abortion

if it is necessary to preserve her health as well as her life, 410 U.S. at 163–64, a

holding which is unelaborated in the opinion. See also United States v. Vuitch, 402

U.S. 62 (1971). 216Planned Parenthood v. Danforth, 428 U.S. 52 (1976). See also Bellotti v.

Baird, 443 U.S. 622 (1979) (parental consent to minor’s abortion); Colautti v. Franklin, 439 U.S. 379 (1979) (imposition on doctor determination of viability of fetus and

obligation to take life-saving steps); Singleton v. Wulff, 428 U.S. 106 (1976) (standing of doctors to litigate right of patients to Medicaid-financed abortions); Bigelow

v. Virginia, 421 U.S. 809 (1975) (ban on newspaper ads for abortions); Connecticut

v. Menillo, 423 U.S. 9 (1975) (state ban on performance of abortion by ‘‘any person’’

may constitutionally be applied to prosecute nonphysicians performing abortions). 217Planned Parenthood v. Danforth, 428 U.S. 52, 67–72 (1976). The Court recognized the husband’s interests and the state interest in promoting marital harmony. But the latter was deemed not served by the requirement, and, since when

the spouses disagree on the abortion decision one has to prevail, the Court thought

the person who bears the child and who is the more directly affected should be the

one to prevail. Justices White and Rehnquist and Chief Justice Burger dissented.

Id. at 92. 218 Id. at 72–75. Minors have rights protected by the Constitution, but the

States have broader authority to regulate their activities than those of adults. Here,

the Court perceived no state interest served by the requirement that overcomes the

woman’s right to make her own decision; it emphasized that it was not holding that

every minor, regardless of age or maturity, could give effective consent for an abortion. Justice Stevens joined the other dissenters on this part of the holding. Id. at

101. In Bellotti v. Baird, 443 U.S. 622 (1979), eight Justices agreed that a parental

consent law, applied to a mature minor, found to be capable of making, and having

made, an informed and reasonable decision to have an abortion, was void but split

on the reasoning. Four Justices would hold that neither parents nor a court could

be given an absolute veto over a mature minor’s decision, while four others would

hold that if parental consent is required the State must afford an expeditious access

to court to review the parental determination and set it aside in appropriate cases.

In H. L. v. Matheson, 450 U.S. 398 (1981), the Court upheld, as applied to an

unemancipated minor living at home and dependent on her parents, a statute requiring a physician, ‘‘if possible,’’ to notify the parents or guardians of a minor seeking an abortion. The decisions leave open a variety of questions, addressed by some

concurring and dissenting Justices, dealing with when it would not be in the minor’s

abortions inasmuch as the doctor could utilize his best clinical

judgment in light of all the attendant circumstances. 215

These decisions were reaffirmed and extended when the Court

was faced with a restrictive state statute enacted after Roe making

access to abortions contingent upon spousal or parental consent

and imposing restraints upon methods. 216 Striking down all the

substantial limitations, the Court held (1) that the spousal consent

provision was an attempt by the State to delegate a veto power

over the decision of the woman and her doctor that the State itself

could not exercise, 217 (2) that no significant state interests justified

the imposition of a blanket parental consent requirement as a condition of the obtaining of an abortion by an unmarried minor during the first 12 weeks of pregnancy, 218 and (3) that a criminal pro-
AMENDMENT 14—RIGHTS GUARANTEED 1673

best interest to avoid notifying her parents and with the alternatives to parental

notification and consent. In two 1983 cases the Court applied the Bellotti v. Baird

standard for determining whether judicial substitutes for parental consent requirements permit a pregnant minor to demonstrate that she is sufficiently mature to

make her own decision on abortion. Compare City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (no opportunity for case-by-case determinations); with Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476 (1983) (adequate

individualized consideration). 219Planned 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). 220Planned Parenthood v. Danforth, 428 U.S. 52, 75–79 (1976). 221 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 438

(1983); Accord, Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476 (1983). The

Court in Akron relied on evidence that ‘‘dilation and evacuation’’ (D&E) abortions

performed in clinics cost less than half as much as hospital abortions, and that common use of the D&E procedure had ‘‘increased dramatically’’ the safety of second

trimester abortions in the 10 years since Roe v. Wade. 462 U.S. at 435–36. 222Simopoulos v. Virginia, 462 U.S. 506, 516 (1983). 223 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 444–

45 (1983); Thornburgh v. American College of Obstetricians and Gynecologists, 476

U.S. 747 (1986).

vision requiring the attending physician to exercise all care and

diligence to preserve the life and health of the fetus without regard

to the stage of viability was inconsistent with Roe. 219 Sustained

were provisions that required the woman’s written consent to an

abortion with assurances that it is informed and freely given, and

provisions mandating reporting and recordkeeping for public health

purposes with adequate assurances of confidentiality. A provision

that barred the use of the most commonly used method of abortion

after the first 12 weeks of pregnancy was declared unconstitutional

since in the absence of another comparably safe technique it did

not qualify as a reasonble protection of maternal health and it instead operated to deny the vast majority of abortions after the first

12 weeks. 220

In other rulings applying Roe, the Court struck down some requirements and upheld others. A requirement that all abortions

performed after the first trimester be performed in a hospital was

invalidated as imposing ‘‘a heavy, and unnecessary, burden on

women’s access to a relatively inexpensive, otherwise accessible,

and [at least during the first few weeks of the second trimester]

safe abortion procedure.’’ 221 A state may, however, require that

abortions be performed in hospitals or licensed outpatient clinics,

as long as licensing standards do not ‘‘depart from accepted medical

practice.’’ 222 Various ‘‘informed consent’’ requirements were struck

down as intruding upon the discretion of the physician, and as

being aimed at discouraging abortions rather than at informing the

pregnant woman’s decision; 223 while the state has a legitimate in-
1674 AMENDMENT 14—RIGHTS GUARANTEED

224 City of Akron, 462 U.S. 416, 448–49 (1983). 225 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 450–

51 (1983). But see Hodgson v. Minnesota, 497 U.S. 417 (1990) (upholding a 48-hour

waiting period following notification of parents by a minor). 226Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476, 486–90 (1983). 227 Id. at 482–86, 505. 228Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980).

See also Beal v. Doe, 432 U.S. 438 (1977) (states are not required by federal law

to fund abortions); Harris v. McRae, supra, at 306–11 (same). The state restriction

in Maher supra at 466, applied to nontheraputic abortions, whereas the federal law

barred funding for most medically necessary abortions as well, a distinction the

Court deemed irrelevant, Harris, at supra, 323, although it provided Justice Stevens

with the basis for reaching different results. Id. at 349 (dissenting). 229Maher, 432 U.S. at 469 & n.5; Harris, 448 U.S. at 312–18.

terest in ensuring that the woman’s consent is informed, the Court

explained, it may not demand of the physician ‘‘a recitation of an

inflexible list of information’’ unrelated to the particular patient’s

health, and, for that matter, may not demand that the physician

rather than some other qualified person render the counseling. 224

The Court also invalidated a 24-hour waiting period following a

woman’s written, informed consent. 225 On the other hand, the

Court upheld a requirement that tissue removed in clinic abortions

be submitted to a pathologist for examination, since the same requirements were imposed for in-hospital abortions and for almost

all other in-hospital surgery. 226 Also, the Court upheld a requirement that a second physician be present at abortions performed

after viability in order to assist in saving the life of the fetus. 227

The Court refused to extend Roe to the area of public funding

to pay for abortions for the pregnant indigent, holding that neither

due process nor equal protection requires government to use public

funds for this purpose. 228 Due process, the Court held, does not obligate the States to pay the pregnancy-related medical expenses of

indigent women, even though both abortion and the right to bear

the child to birth are ‘‘fundamental’’ rights. 229 But the more critical

question was the equal protection restraint imposed when government does provide public funds for medical care to indigents; may

it accord differential treatment to abortion and childbirth and prefer the latter? The States may do so, the Court continued, because

it is rationally related to a lawful purpose to encourage normal

childbirth. The use of the rational basis test required a rejection of

the compelling state interest test in the following manner. First,

the more severe test was not activated by a classification impacting

on a suspect class, neither wealth nor indigency being such a class.

Second, and most significant for abortion adjudication, the Court

held that state refusal to pay for abortions did not impinge upon

a fundamental right. Prior state restrictions which had been invalidated, the Court continued, had created absolute obstacles to the
AMENDMENT 14—RIGHTS GUARANTEED 1675

230Maher, 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.

231Poelker v. Doe, 432 U.S. 519 (1977).

232 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 419–

20 (1983). In refusing to overrule Roe v. Wade, the Court merely cited the principle

of stare decisis. Justice Powell’s opinion of the Court was joined by Chief Justice

Burger, and by Justices Brennan, Marshall, Blackmun, and Stevens. Justice O’Connor, joined by Justices White and Rehnquist, dissented, voicing disagreement with

the trimester approach and suggesting instead that throughout pregnancy the test

should be the same: whether state regulation constitutes ‘‘unduly burdensome interference with [a woman’s] freedom to decide whether to terminate her pregnancy.’’

462 U.S. at 452, 461. In the 1986 case of Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), Justice White, joined by Justice

Rehnquist, advocated overruling of Roe v. Wade, Chief Justice Burger thought Roe

v. Wade had been extended to the point where it should be reexamined, and Justice

O’Connor repeated misgivings expressed in her Akron dissent.

233 492 U.S. 490 (1989).

obtaining of an abortion. While a state-created obstacle need not be

absolute to be impermissible, it must at a minimum ‘‘unduly burden’’ the right to terminate a pregnancy. To allocate public funds

so as to further a state interest in normal childbirth does not create an absolute obstacle to obtaining an abortion nor does it unduly

burden the right. The condition—indigency—that is the barrier to

getting an abortion was not created by government nor does the

State add to the burden that exists already. ‘‘An indigent woman

who desires an abortion suffers no disadvantage as a consequence

of Connecticut’s decision to fund childbirth; she continues as before

to be dependent on private sources for the services she desires. The

State may have made childbirth a more attractive alternative,

thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there.’’ 230 Applying the same principles, the Court held that a municipal hospital could constitutionally provide hospital services for indigent

women for childbirth but deny services for abortion. 231

In 1983 the Court expressly reaffirmed Roe v. Wade, 232 and

continued to apply its principles to a variety of state statutes attempting to regulate the circumstances of abortions. The Court’s

1989 decision in Webster v. Reproductive Health Services, 233 however, signalled a break with the past even though Roe v. Wade was

not overruled.

Webster upheld two aspects of Missouri’s statute regulating

abortions: a prohibition on the use of public facilities and employees to perform abortions not necessary to save the life of the mother; and a requirement that a physician, before performing an abortion on a fetus she has reason to believe has reached a gestational
1676 AMENDMENT 14—RIGHTS GUARANTEED

234The 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. 235Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990). 236 Hodgson v. Minnesota, 497 U.S. 417 (1990). 237 492 U.S. at 519–20. Dissenting Justice Blackmun, joined by Justices Brennan and Marshall, argued that this ‘‘permissibly furthers’’ standard ‘‘completely disregards the irreducible minimum of Roe . . . that a woman has a limited fundamental constitutional right to decide whether to terminate a pregnancy,’’ and instead

balances ‘‘a lead weight’’ (the State’s interest in fetal life) against a ‘‘feather’’ (a

woman’s liberty interest). Id. at 555, 556 n.11. 238 497 U.S. at 450. 239 492 U.S. at 521. Concurring Justice O’Connor agreed that ‘‘no decision of

this Court has held that the State may not directly promote its interest in potential

life when viability is possible.’’ Id. at 528.

age of 20 weeks, make an actual viability determination. 234 In two

1990 cases the Court then upheld parental notification requirements. Ohio’s requirement that one parent be notified of a minor’s

intent to obtain an abortion, or that the minor use a judicial bypass

procedure to obtain the approval of a juvenile court, was approved. 235 And, while the Court ruled that Minnesota’s requirement that both parents be notified was invalid standing alone, the

statute was saved by a judicial bypass alternative. 236

The Webster Court was split in its approach to Missouri’s viability determination requirement, and in its approach to Roe v.

Wade. The plurality opinion by Chief Justice Rehnquist, joined in

that part by Justices White and Kennedy, was highly critical of

Roe, but found no occasion to overrule it. Instead, the plurality’s

approach would water down Roe by applying a less stringent standard of review. The viability testing requirement is valid, the plurality contended, because it ‘‘permissibly furthers the State’s interest

in protecting potential human life.’’ 237 Justice O’Connor concurred

in the result because in her view the requirement did not impose

‘‘an undue burden’’ on a woman’s right to an abortion, and Justice

Scalia concurred in the result while urging that Roe be overruled

outright. That Webster may have changed the focus of debate was

illustrated by the Court’s approach to the parental notification

issue. A Court majority in Hodgson invalidated Minnesota’s alternative procedure requiring notification of both parents without judicial bypass, not because it burdened a fundamental right, but because it did ‘‘not reasonably further any legitimate state interest.’’ 238

Roe was not confronted more directly in Webster because the

viability testing requirement, as characterized by the plurality,

merely asserted a state interest in protecting potential human life

from the point of viability, and hence did not challenge Roe’s trimester framework. 239 Nonetheless, a majority of Justices appeared
AMENDMENT 14—RIGHTS GUARANTEED 1677

240 Id. at 519. 241 Id. at 529. Previously, dissenting in City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 458 (1983), Justice O’Connor had suggested that the

Roe trimester framework ‘‘is clearly on a collision course with itself. As the medical

risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth.

As medical science becomes better able to provide for the separate existence of the

fetus, the point of viability is moved further back toward conception.’’ 242 112 S. Ct. 2791, 2804 (1992). 243 Id. at 2811.

ready to reject a strict trimester approach. The plurality asserted

a compelling state interest in protecting human life throughout

pregnancy, rejecting the notion that the state interest ‘‘should come

into existence only at the point of viability;’’ 240 Justice O’Connor

repeated her view that the trimester approach is ‘‘problematic;’’ 241

and, as mentioned, Justice Scalia would do away with Roe altogether.

Three years later the Court, invoking principles of stare decisis, reaffirmed Roe’s ‘‘essential holding,’’ but restated that holding

in terms of undue burden and also abandoned Roe’s reliance on the

trimester approach. Roe’s ‘‘essential holding,’’ said the Court in

Planned Parenthood of Southeastern Pennsylvania v. Casey, 242 has

three parts. ‘‘First is a recognition of the right of a woman to

choose to have an abortion before viability and to obtain it without

undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion

or the imposition of a substantial obstacle to the woman’s effective

right to elect the procedure. Second is a confirmation of the State’s

power to restrict abortions after fetal viability, if the law contains

exceptions for pregnancies which endanger a woman’s life or

health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health

of the woman and the life of the fetus that may become a child.’’

This restatement of Roe’s essentials, recognizing a legitimate

state interest in protecting fetal life throughout pregnancy, necessarily eliminated the rigid trimester analysis permitting almost

no regulation in the first trimester. Viability still marked ‘‘the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic

abortions,’’ 243 but less burdensome regulations could be applied before viability. ‘‘What is at stake,’’ the three-Justice plurality asserted, ‘‘is the woman’s right to make the ultimate decision, not a

right to be insulated from all others in doing so. Regulations which

do no more than create a structural mechanism by which the State

. . . may express profound respect for the life of the unborn are

permitted, if they are not a substantial obstacle to the woman’s ex-
1678 AMENDMENT 14—RIGHTS GUARANTEED

244 Id. at 2821. 245 Id. at 2844. 246 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983)

(invalidating ‘‘informed consent’’ and 24-hour waiting period); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (invalidating

informed consent requirement).

ercise of the right to choose.’’ Thus, unless an undue burden is imposed, states may adopt measures ‘‘designed to persuade [a woman]

to choose childbirth over abortion.’’ 244

Application of these principles led the Court to uphold several

aspects of Pennslyvania’s abortion control law, in the process overruling precedent, but to invalidate what was arguably the most restrictive provision. Four challenged provisions of the law were

upheld: a definition of ‘‘medical emergency’’ controlling exemptions

from the Act’s other limitations; recordkeeping and reporting requirements imposed on facilities that perform abortions; an informed consent and 24-hour waiting period requirement; and a parental consent requirment, with possibility for judicial bypass, applicable to minors. Invalidated as an undue burden on a woman’s

right to an abortion was a spousal notification requirement.

It was a new alignment of Justices that restated and preserved

Roe. Joining Justice O’Connor in a jointly authored opinion adopting and applying Justice O’Connor’s ‘‘undue burden’’ analysis were

Justices Kennedy and Souter. Justices Blackmun and Stevens

joined parts of the plurality opinion, but dissented from other

parts. Justice Stevens would not have abandoned trimester analysis, and would have invalidated the 24-hour waiting period and aspects of the informed consent requirement. Justice Blackmun, author of the Court’s opinion in Roe, asserted that ‘‘the right to reproductive choice is entitled to the full protection afforded by this

Court before Webster,’’ 245 and would have invalidated all of the

challenged provisions. Chief Justice Rehnquist, joined by Justices

White, Scalia, and Thomas, would have overruled Roe and upheld

all challenged aspects of the Pennsylvania law.

Overruled in Casey were earlier decisions that had struck

down informed consent and 24-hour waiting periods. 246 Given the

state’s legitimate interests in protecting the life of the unborn and

the health of the potential mother, and applying ‘‘undue burden’’

analysis, the three-Justice plurality found these requirements permissible. Requiring informed consent for medical procedures is both

commonplace and reasonable, and, in the absence of any evidence

of burden, the state could require that information relevant to informed consent be provided by a physician rather than an assistant. The 24-hour waiting period was approved both in theory (it
AMENDMENT 14—RIGHTS GUARANTEED 1679

247 112 S. Ct. at 2835. 248The plurality Justices were joined in this part of their opinion by Justices

Blackmun and Stevens. 249 Id. at 2831. 250 E.g., the Fourth Amendment. 251 381 U.S. 479 (1965).

being reasonable to assume ‘‘that important decisions will be more

informed and deliberate if they follow some period of reflection’’)

and in practice (in spite of ‘‘troubling’’ findings of increased burdens on poorer women who must travel significant distances to obtain abortions, and on all women who must twice rather than once

brave harassment by anti-abortion protesters). 247 The Court also

upheld application of an additional requirement that women under

age 18 obtain the consent of one parent or avail themselves of a

judicial bypass alternative.

On the other hand, the Court 248 distinguished Pennsylvania’s

spousal notification provision as constituting an undue burden on

a woman’s right to choose an abortion. ‘‘A State may not give to

a man the kind of dominion over his wife that parents exercise over

their children’’ (and that men exercised over their wives at common

law). 249 Although there was an exception for a woman who believed that notifying her husband would subject her to bodily injury, this exception was not broad enough to cover other forms of

abusive retaliation, e.g., psychological intimidation, bodily harm to

children, or financial deprivation. To require a wife to notify her

husband in spite of her fear of such abuse would unduly burden

the wife’s liberty interest as an individual to decide whether to

bear a child.

Privacy: Its Constitutional Dimensions.—Roe v. Wade and

its progeny could have had significant effect outside the abortion

area in the general area of personal liberties, inasmuch as the revitalization of substantive due process in the noneconomic regulation

area, overlaid with the compelling state interest test, could call into

question many governmental restraints upon the person. Roe’s emphasis upon the privacy rationale seemed to presage an active judicial role in defining and protecting the interests of persons ‘‘to be

let alone.’’ Those developments have not occurred, however, and the

cases reflect the intention of the Court to curb the expansion of any

doctrinal ramifications flowing beyond the abortion cases.

Privacy has in a number of cases been identified as a core

value of the Bill of Rights, 250 but it was not until Griswold v. Connecticut 251 that an independent right of privacy, derived from the

confluence of several provisions of the Bill of Rights or discovered

in the ‘‘penumbras’’ of these provisions, was expounded by the
1680 AMENDMENT 14—RIGHTS GUARANTEED

252 In Eisenstadt v. Baird, 405 U.S. 438 (1972), the court had declined to extend

the Griswold principle to the unmarried on privacy grounds, relying on an equal

protection analysis instead. 253 Roe v. Wade, 410 U.S. 113, 153 (1973). See id. at 167–71 (Justice Stewart

concurring). Justice Douglas continued to deny that substantive due process is the

basis of the decisions. Doe v. Bolton, 410 U.S. 179, 209, 212 n.4 (1973) (concurring). 254 Roe v. Wade, 410 U.S. 113, 152 (1973). 255Paris Adult Theatre v. Slaton, 413 U.S. 49, 66 n.13 (1973).

Court and actually used to strike down a governmental restraint.

The abortion cases extended Griswold many degrees in several respects. First, the cases removed any lingering possibility that the

right is a marital one that depends upon that relationship. 252 Second, the right of privacy was denominated a liberty which found its

source and its protection in the due process clause of the Fourteenth Amendment. 253 Third, by designating the right as a ‘‘fundamental’’ right, the Court required a governmental restraint to be

justified by a ‘‘compelling state interest.’’ Necessary to assessment

of the effect of this development is a close analysis of the limits of

the right thus protected as well as of its contents.

‘‘The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, . . . the Court has recognized

that a right of personal privacy, or a guarantee of certain areas or

zones of privacy, does exist under the Constitution. . . . These decisions make it clear that only personal rights that can be deemed

‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko

v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right

has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316

U.S. 535, 541–42 (1942); contraception, Eisenstadt v. Baird, 405

U.S. at 453–54; id. at 460, 463–65 (White, J., concurring in result);

family relationships, Prince v. Massachusetts, 321 U.S. 158, 166

(1944); and child rearing and education, Pierce v. Society of Sisters,

268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.’’ 254 In the pornography cases decided later in the same Term, the Court denied

the existence of any privacy right of customers to view unprotected

material in commercial establishments, repeating the above descriptive language from Roe, and saying further: ‘‘the constitutionally protected privacy of family, marriage, motherhood,

procreation, and child rearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor’s office, the hospital, the hotel

room, or as otherwise required to safeguard the right to intimacy

involved.’’ 255
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256Whalen v. Roe, 429 U.S. 589, 598–600 (1977). 257 381 U.S. 479 (1965). 258 E.g., California Bankers Ass’n v. Schultz, 416 U.S. 21 (1974). See also Laird

v. Tatum, 408 U.S. 1 (1972); United States v. United States District Court, 407 U.S.

297 (1972); United States v. Dionisio, 410 U.S. 1 (1973); Zurcher v. Stanford Daily,

436 U.S. 547 (1978). 259 425 U.S. 435 (1976). See also Fisher v. United States, 425 U.S. 391, 401

(1976); Paul v. Davis, 424 U.S. 693, 712–13 (1976); United States v. Bisceglia, 420

U.S. 141 (1975).

What is apparent from the Court’s approach in these cases is

that its concept of privacy is descriptive rather than analytical,

making difficult an assessment of the potential of the doctrine. Privacy as a concept appears to encompass at least two different but

related aspects. First, it relates to the right or the ability of individuals to determine how much and what information about themselves is to be revealed to others. Second, it relates to the idea of

autonomy, the freedom of individuals to perform or not perform

certain acts or subject themselves to certain experiences. 256 Governmental commands to do or not to do something may well implicate one or the other or both of these aspects, and judicial decision

about the validity of such governmental commands must necessarily be informed by use of an analytical framework balancing

the governmental interests against the individual interests in

maintaining freedom in one or both aspects of privacy. That framework cannot now be constructed on the basis of the Court’s decided

cases.

Griswold v. Connecticut, 257 voiding a state statute proscribing

the use of contraceptives, seems primarily to be based upon a judicial concept of privacy flowing from the first aspect of privacy described above. That is, the predominant concern flowing through

the several opinions is the threat of forced disclosure about the private and intimate lives of persons through the pervasive surveillance and investigative efforts that would be needed to enforce such

a law; moreover, the concern was not limited to the outward pressures upon the confines of such provisions as the Fourth Amendment’s search and seizure clause, but extended to techniques that

would have been within the range of permissible investigation.

Subsequent cases, however, have returned to Fourth and Fifth

Amendment principles to regulate official invasions of privacy. 258

For example, in United States v. Miller, 259 the Court evaluated

in Fourth Amendment terms the right of privacy of depositors in

restricting Government access to their cancelled checks maintained

by the bank as required by the Bank Secrecy Act. The cancelled

checks, the Court held, were business records of the bank in which

the depositors had no expectation of privacy and therefore no
1682 AMENDMENT 14—RIGHTS GUARANTEED

260 425 U.S. 391 (1976). 261 Id. at 399. 262 Id. at 401. 263See 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). 264 429 U.S. 589 (1977).

Fourth Amendment standing to challenge government legal process

directed to the bank, and this status was unchanged by the fact

that the banks kept the records under government mandate in the

first place. And in Fisher v. United States, 260 the Court denied that

the Fifth Amendment’s self-incrimination clause operated in any

way to prevent the IRS from obtaining by summons income tax

records prepared by accountants and in the hands of either the taxpayer or his attorney, no matter how incriminating, because the

Amendment only protects against compelled testimonial self-incrimination. ‘‘[T]he Court has never suggested that every invasion

of privacy violates the privilege. Within the limits imposed by the

language of the Fifth Amendment, which we necessarily observe,

the privilege truly serves privacy interests; but the Court has never

on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence

which, in the Court’s view, did not involve compelled testimonial

self-incrimination of some sort.’’ 261 Further, ‘‘[w]e cannot cut the

Fifth Amendment completely loose from the moorings of its language, and make it serve as a general protector of privacy—a word

not mentioned in its text and a concept directly addressed in the

Fourth Amendment.’’ 262 The First Amendment itself affords some

limitation upon governmental acquisition of information but here

again the gravamen is a violation of speech or association or the

like concomitant with exposure of personal information, and not exposure itself. 263

A cryptic opinion in Whalen v. Roe 264 may indicate the Court’s

willingness to recognize privacy interests as independent constitutional rights. At issue was a state’s pervasive regulation of prescription drugs that could be abused, and the centralized recordkeeping through computers of all such prescriptions identifying the

patients. The scheme was attacked on the basis that it invaded privacy interests against disclosure and privacy interests involving

autonomy of persons in choosing whether to have the medication.

The Court appeared to agree that both interests are protected, but

because the scheme was surrounded with extensive security protection against disclosure beyond that necessary to achieve the purposes of the program it was not thought to ‘‘pose a sufficiently
AMENDMENT 14—RIGHTS GUARANTEED 1683

265 Id. at 598–604. The Court cautioned that it had decided nothing about the

privacy implications of the accumulation and disclosure of vast amounts of information in data banks. Safeguarding such information from disclosure ‘‘arguably has its

roots in the Constitution,’’ at least ‘‘in some circumstances,’’ the Court seemed to indicate. Id. at 605. Compare id. at 606 (Justice Brennan concurring). What the

Court’s careful circumscription of the privacy issue through balancing does to the

concept is unclear after Nixon v. Administrator of General Services, 433 U.S. 425,

455–65 (1977), but note the dissents. Id. at 504, 525–36 (Chief Justice Burger), and

545 n.1 (Justice Rehnquist). 266 Roe v. Wade, 410 U.S. 113, 148 (1972). Additionally, if the purpose of the

statute was to deter illicit sexual conduct, the law was overbroad since it included

both unmarried and married women. This morality rationale also fell afoul of

overinclusion and underinclusion in Eisenstadt v. Baird, 405 U.S. 438, 477–50

(1972). 267 394 U.S. 557 (1969).

grievous threat to either interest to establish a constitutional violation.’’ 265

Not the method of enforcement but the fact of enforcement was

the issue in Roe and Doe. That is, the power of the State to deny

women all access to abortions, the power to proscribe effectuation

of the will and desire of women to terminate pregnancy, was at

issue. Because the Court determined that the will and desire constituted a protected ‘‘liberty,’’ the State was required to justify its

proscription by a compelling interest. Once the question of the

personhood of the fetus was resolved, the Court confronted in effect

only two asserted state interests. Protecting the health of the mother was recognized as a valid interest, the Court thereby departing

from a laissez faire ‘‘free will’’ approach to individual autonomy. A

state interest in morality was mentioned by the Court, not because

the State had raised it, but simply to defer deciding it; however,

the noted morality issue involved not the morality of abortion, but

instead the promotion of sexual morality through making abortion

unavailable. 266

Stanley v. Georgia, 267 holding that government may not make

private possession of obscene materials for private use a crime, approached a judicial recognition of the autonomy aspect of privacy.

True it is that the possession there was in Stanley’s home, a fact

heavily relied on by the Court, but the police had lawfully invaded

his privacy upon the authority of a valid warrant and a subsidiary

Fourth Amendment issue that was available for decision was

passed over in favor of a broader resolution. Inasmuch as the materials were obscene, they were outside the scope of First Amendment protection. But the Court premised its decision upon one’s

protected right to receive what information and ideas he wished

and upon one’s protected ‘‘right to be free, except in very limited

circumstances, from unwanted governmental intrusions into one’s
1684 AMENDMENT 14—RIGHTS GUARANTEED

268 Id. at 564–65. 269 United States v. Reidel, 402 U.S. 351, 354–56 (1971); United States v. Thirty-seven Photographs, 402 U.S. 363, 375–76 (1971). 270Paris Adult Theatre v. Slaton, 413 U.S. 49, 57–63, 63–64, 68–69 (1973); and

see id. at 68 n.15.

privacy.’’ 268 These rights were held superior to the interests Georgia asserted to override them. That is, first, the State was held to

have no authority to protect an individual’s mind from the effects

of obscenity, to promote the moral content of one’s thoughts. Second, the State’s assertion that exposure to obscenity may lead to

deviant sexual behavior was rejected on the basis of a lack of empirical support and, more important, on the basis that less intrusive deterrents were available. Thus, a right to be free of governmental regulation in this area was clearly recognized.

Stanley was quickly restricted to its facts, to possession of pornography in the home. 269 But in its important reconsideration of

and reaffirmation of governmental interests in the control of pornography, the Court went beyond this restriction and recognized

governmental interests that included the promotion of public morality, protection of the individual’s psychological health, and improving the quality of life. ‘‘It is argued that individual ‘free will’

must govern, even in activities beyond the protection of the First

Amendment and other constitutional guarantees of privacy, and

that government cannot legitimately impede an individual’s desire

to see or acquire obscene plays, movies, and books. We do indeed

base our society on certain assumptions that people have the capacity for free choice. Most exercises of individual free choice—those

in politics, religion, and expression of ideas—are explicitly protected by the Constitution. Totally unlimited play for free will,

however, is not allowed in our or any other society. . . . [Many laws

are enacted] to protect the weak, the uninformed, the unsuspecting,

and the gullible from the exercise of their own volition.’’ Furthermore, continued the Court: ‘‘Our Constitution establishes a broad

range of conditions on the exercise of power by the States, but for

us to say that our Constitution incorporates the proposition that

conduct involving consenting adults is always beyond state regulation is a step we are unable to take. . . . The issue in this context

goes beyond whether someone, or even the majority, considers the

conduct depicted as ‘wrong’ or ‘sinful.’ The States have the power

to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or

to jeopardize . . . the States’ ‘right . . . to maintain a decent society.’ ’’ 270
AMENDMENT 14—RIGHTS GUARANTEED 1685

271 478 U.S. 186, 195 (1986). 272 478 U.S. at 195–96. Dissenting Justice Blackmun challenged the Court’s

characterization of Stanley, suggesting that it had rested as much on the Fourth as

on the First Amendment, and that ‘‘the right of an individual to conduct intimate

relationships in . . . his or her own home [is] at the heart of the Constitution’s protection of privacy.’’ Id. at at 207–08. 273 Id. at 66 n.13. See also Paul v. Davis, 424 U.S. 693, 713 (1976). 274 431 U.S. 678 (1977). 275 Id. at 684–91. The opinion of the Court on the general principles drew the

support of Justices Brennan, Stewart, Marshall, Blackmun, and Stevens. Justice

White concurred in the result in the voiding of the ban on access to adults while

not expressing an opinion on the Court’s general principles. Id. at 702. Justice Powell agreed the ban on access to adults was void but concurred in an opinion significantly more restrained than the opinion of the Court. Id. at 703. Chief Justice Burger, id. at 702, and Justice Rehnquist, id. at 717, dissented.

Stanley was further distinguished in Bowers v. Hardwick as

being ‘‘firmly grounded in the First Amendment.’’ 271 Thus, the

Court held in Bowers, there is no protected right to engage in homosexual sodomy in the privacy of the home, and Stanley did not

implicitly create protection for ‘‘voluntary sexual conduct [in the

home] between consenting adults.’’ 272

Evidently, then, the fundamental right of privacy that is protected by the due process clause is one functionally related to ‘‘family, marriage, motherhood, procreation, and child rearing.’’ 273 Even

so limited, the concept can have numerous significant aspects occasioning major constitutional decisions. Thus, in Carey v. Population

Services International, 274 the Griswold-Baird line of cases was significantly extended so as to make the ‘‘decision whether or not to

beget or bear a child’’ a ‘‘constitutionally protected right of privacy’’

interest that government may not forbid or burden without justifying the limitation by a compelling state interest and by a regulation narrowly drawn to express only that interest or interests. This

‘‘constitutional protection of individual autonomy in matters of

childbearing’’ led the Court to invalidate a state statute that

banned the distribution of contraceptives to adults except by licensed pharmacists and that forbade any person to sell or distribute contraceptives to a minor under 16. 275 The limitation of the

number of outlets to adults ‘‘imposes a significant burden on the

right of the individuals to use contraceptives if they choose to do

so’’ and was unjustified by any interest put forward by the State.

The prohibition on sale to minors was judged not by the compelling

state interest test, but instead by inquiring whether the restrictions serve ‘‘any significant state interest . . . that is not present

in the case of an adult.’’ This test is ‘‘apparently less rigorous’’ than

the test used with adults, a distinction justified by the greater governmental latitude in regulating the conduct of children and the

lesser capability of children in making important decisions. The at-
1686 AMENDMENT 14—RIGHTS GUARANTEED

276 Id. at 691–99. This portion of the opinion was supported by only Justices

Brennan, Stewart, Marshall, and Blackmun. Justices White, Powell, and Stevens

concurred in the result, id. at 702, 703, 712, each on more narrow grounds than the

plurality. Again, Chief Justice Burger and Justice Rehnquist dissented. Id. at 702,

717.277 478 U.S. 186 (1986). The Court’s opinion was written by Justice White, and

joined by Chief Justice Burger and by Justices Powell, Rehnquist, and O’Connor.

The Chief Justice and Justice Powell added brief concurring opinions. Justice

Blackmun dissented, joined by Justices Brennan, Marshall, and Stevens, and Justice Stevens, joined by Justices Brennan and Marshall, added a separate dissenting

opinion. 278 ‘‘[N]one of the rights announced in those cases bears any resemblance to the

claimed constitutional right of homosexuals to engage in acts of sodomy.’’ 478 U.S.

at 190–91. 279 Id. at 191. The Court asserted that Carey v. Population Services Int’l, 431

U.S. 678, 694 n.17 (1977), which had reserved decision on the issue, had established

that the privacy right ‘‘did not reach so far.’’ 280 478 U.S. at 191. 281 In the Court’s view, homosexual sodomy is neither a fundamental liberty

‘‘implicit in the concept of ordered liberty’’ nor is it ‘‘deeply rooted in this Nation’s

history and tradition.’’ Id. at at 191–92. 282 Id. Chief Justice Burger’s brief concurring opinion amplified on this theme,

concluding that constitutional protection for ‘‘the act of homosexual sodomy . . .

would . . . cast aside millennia of moral teaching.’’ Id. at at 197. Justice Powell cautioned that Eighth Amendment proportionality principles might limit the severity

with which states can punish the practices (Hardwick had been charged but not

prosecuted, and had initiated the action to have the statute under which he had

been charged declared unconstitutional). Id.

tempted justification for the ban was rejected. Doubting the permissibility of a ban on access to contraceptives to deter minors’ sexual activity, the Court even more doubted, because the State presented no evidence, that limiting access would deter minors from

engaging in sexual activity. 276

In Bowers v. Hardwick, 277 the Court by 5–4 vote roundly rejected the suggestion that the privacy cases protecting ‘‘family,

marriage, or procreation’’ extend any protection for private consensual homosexual sodomy, 278 and also rejected the more comprehensive claim that the cases ‘‘stand for the proposition that any kind

of private sexual conduct between consenting adults is constitutionally insulated from state proscription.’’ 279 Moreover, the Court

refused to create any such fundamental right. Justice White’s opinion for the Court in Hardwick sounded the same opposition to ‘‘announcing rights not readily identifiable in the Constitution’s text’’

that underlay his dissents in the abortion cases. 280 In addition, the

Court concluded that rationales relied upon in the earlier privacy

cases do not extend ‘‘a fundamental right to homosexuals to engage

in acts of consensual sodomy.’’ 281 Heavy reliance was placed on the

fact that prohibitions on sodomy have ‘‘ancient roots,’’ and on the

fact that half of the states still prohibit the practices. 282 The privacy of the home does not immunize all behavior from state regulation, and the Court was ‘‘unwilling to start down [the] road’’ of im-
AMENDMENT 14—RIGHTS GUARANTEED 1687

283The Court voiced concern that ‘‘it would be difficult . . . to limit the claimed

right to homosexual conduct while leaving exposed to prosecution adultery, incest,

and other sexual crimes even though they are committed in the home.’’ Id. at 195–

96. Dissenting Justices Blackmun (id. at 209 n.4) and Stevens (id. at 217–18) suggested that these crimes are readily distinguishable. 284 Id. at 199. The Georgia statute at issue, like most sodomy statutes, prohibits

the practices regardless of the sex or marital status of the participants. See Id. at

188 n.1. Justice Stevens too focused on this aspect, suggesting that the earlier privacy cases clearly bar a state from prohibiting sodomous acts by married couples,

and that Georgia had not justified selective application to homosexuals. Id. at 219. 285 Id. at 204–06. 286The Court reserved this question in Carey, 431 U.S., 694 n.17 (plurality

opinion), although Justices White, Powell, and Stevens in concurrence seemed to see

no barrier to state prohibition of sexual relations by minors. Id. at 702, 703, 712. 287 Roe v. Wade, 410 U.S. 113, 152 (1973). The language is quoted in full in

Carey, supra, 431 U.S. 684–85.

288San Antonio School District v. Rodriguez, 411 U.S. 1, 33–34 (1973). That this

restriction is not holding with respect to equal protection analysis or due process

analysis can be discerned easily. Compare Zablocki v. Redhail, 434 U.S. 374 (1978)

(opinion of Court), with id. at 391 (Justice Stewart concurring), and id. at 396 (Justice Powell concurring).

munizing ‘‘voluntary sexual conduct between consenting adults.’’ 283

Justice Blackmun’s dissent was critical of the Court’s phrasing of

the issue as one of homosexual sodomy, 284 and asserted that the

basic issue was the individual’s privacy right ‘‘to be let alone.’’ The

privacy cases are not limited to protection of the family and the

right to procreation, he asserted, but instead stand for the broader

principle of individual autonomy and choice in matters of sexual intimacy. 285

Similarly, the extent to which governmental regulation of the

sexual activities of minors is subject to constitutional scrutiny is of

great and continuing importance. 286 Analysis of these questions is

hampered because the Court has not told us what about the particular facets of human relationships—marriage, family,

procreation—gives rise to a protected liberty and what does not,

and how indeed these factors vary significantly enough from other

human relationships to result in differing constitutional treatment.

The Court’s observation in the abortion cases ‘‘that only personal

rights that can be deemed ‘fundamental’ are included in this guarantee of personal privacy,’’ occasioning justification by a ‘‘compelling’’ interest, 287 little elucidates the answers inasmuch as in the

same Term the Court significantly restricted its equal protection

doctrine of ‘‘fundamental’’ interests—‘‘compelling’’ interest justification by holding that the ‘‘key’’ to discovering whether an interest

or a relationship is a ‘‘fundamental’’ one is whether it is ‘‘explicitly

or implicitly guaranteed by the Constitution.’’ 288

Whether an independent, discrete concept of privacy, in either

of its major aspects, emerges from developing judicial doctrines is

largely problematical. There appears to be a tendency to designate
1688 AMENDMENT 14—RIGHTS GUARANTEED

289Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S.

510 (1928). 290Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality). Continuing the limitation of the right of privacy to family-related activities is Bowers

v. Hardwick, 478 U.S. 186 (1986). 291Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977). 292Zablocki v. Redhail, 434 U.S. 374, 386 (1978). 293Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S.

479, 486 (1965); Cleveland Bd. of Education v. LaFleur, 414 U.S. 632, 639–40

(1974); Zablocki v. Redhail, 434 U.S. 374, 383–87 (1978). 294Zablocki 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).

as a right of privacy a right or interest which extensions of precedent or applications of logical analysis have led the Court to conclude to protect. Because this protection is now settled to be a ‘‘liberty’’ which the due process clause includes, the analytical validity

of denominating the particular right or interest as an element of

privacy rather than as an element of ‘‘liberty’’ seems open to question.

Family Relationships.—While the ‘‘privacy’’ basis of autonomy seems to be definitionally based, the Court’s drawing on the

line of cases since Meyer and Pierce 289 has ‘‘established that the

Constitution protects the sanctity of the family precisely because

the institution of the family is deeply rooted in this Nation’s history and tradition.’’ 290 Recognition of the protected ‘‘liberty’’ of the

familial relationship affords the Court a principled and doctrinal

basis of review of governmental regulations that adversely impact

upon the ability to enter into the relationship, to maintain it, to

terminate it, and to resolve conflicts within the relationship. This

liberty, unlike the interest in property which has its source in statutory law, springs from the base of ‘‘intrinsic human rights, as they

have been understood in ‘this Nation’s history and tradition.’ ’’ 291

Being of fundamental importance, the familial relationship is ordinarily subject only to regulation that can survive rigorous judicial

scrutiny, although ‘‘reasonable regulations that do not significantly

interfere with decisions to enter into the marital relationship may

legitimately be imposed.’’ 292 Recent decisions cast light in all areas

of the family relationship.

Because the right to marry is a fundamental right protected by

the due process clause, 293 a state may not deny the right to marry

to someone who has failed to meet a child support obligation, there

being no legitimate state interest compelling enough to justify the

prohibition. 294 There is a constitutional right to live together as a
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295 ‘‘If a State were to attempt to force the breakup of a natural family, over

the objections of the parents and their children, without some showing of unfitness

and for the sole reason that to do so was thought to be in the children’s best interest, I should have little doubt that the State would have intruded impermissibly on

‘the private realm of family life which the state cannot enter.’’’ Smith v. Organization of Foster Families, 431 U.S. 816, 862–63 (1977) (Justice Stewart concurring),

cited with approval in Quilloin v. Walcott, 434 U.S. 246, 255 (1978). 296Moore 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

513.297Smith v. Organization of Foster Families, 431 U.S. 816 (1977). The natural

family, the Court observed, did not have its source in statutory law, whereas the

ties that develop between foster parent and foster child have their origins in an arrangement which the State brought about. But some liberty interests do arise from

positive law, although the expectations and entitlements are thereby limited as well

by state law. And such a liberty interest may not be recognized without derogating

from the substantive liberty interests of the natural parents. Thus, the interest of

foster parents must be quite limited and attenuated, but Smith does not define what

it is. Id. at 842–47. 298See Quilloin v. Walcott, 434 U.S. 246 (1978). 299Michael 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. 300The clearest conflict presented to date raised the issue of giving a veto to

parents over their minor children’s right to have an abortion. Planned Parenthood

v. Danforth, 428 U.S. 52 (1976); Planned Parenthood v. Casey, 112 S. Ct. 2791

(1992). See also Parham v. J. R., 442 U.S. 584 (1979) (parental role in commitment

of child for treatment of mental illness).

family, 295 one not limited to the nuclear family. Thus, a city ordinance which zoned for single family occupancy and so defined ‘‘family’’ as to bar extended family relationships was found to violate the

due process clause as applied to prevent a grandmother from having in her household two grandchildren of different children. 296

And the concept of ‘‘family’’ may extend beyond the biological, blood

relationship of extended families to the situation of foster families,

although the Court has acknowledged that such a claim to constitutionally protected liberty interests raises complex and novel questions. 297 In the conflict between natural and foster families, other

difficult questions inhere and it may well be that a properly constituted process under state law of determining the best interests

of the child will be deferred to. 298 On the other hand, the Court

has held, the presumption of legitimacy accorded to a child born to

a married woman living with her husband is valid even to defeat

the right of the child’s biological father to establish paternity and

visitation rights. 299

The Court has merely touched upon but not dealt definitively

with the complex and novel questions raised by possible conflicts

between parental rights and children’s rights. 300
1690 AMENDMENT 14—RIGHTS GUARANTEED

301These principles have no application to persons not held in custody by the

state. DeShaney v. Winnebago County Social Servs. Dep’t, 489 U.S. 189 (1989) (no

Due Process violation for failure of state to protect an abused child from his parent,

even when the social service agency had been notified of possible abuse, and possibility had been substantiated through visits by social worker). 302 Youngberg v. Romeo, 457 U.S. 307, 314–16 (1982). See Jackson v. Indiana,

406 U.S. 715 (1972); O’Connor v. Donaldson, 422 U.S. 563 (1975); Vitek v. Jones,

445 U.S. 480, 491–94 (1980). 303 Youngberg v. Romeo, 457 U.S. 307, 314–316 (1982). Thus, personal security

constitutes a ‘‘historic liberty interest’’ protected substantively by the due process

clause. Ingraham v. Wright, 430 U.S. 651, 673 (1977) (liberty interest in being free

from undeserved corporal punishment in school); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18 (1979) (Justice Powell concurring) (‘‘Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due

Process Clause from arbitrary governmental actions’’). 304 ‘‘The word ‘habilitation’ is commonly used to refer to programs for the mentally retarded because mental retardation is . . . a learning disability and training

impairment rather than an illness. [T]he principal focus of habilitation is upon

training and development of needed skills.’’ Youngberg v. Romeo, 457 U.S. 307, 309

n.1 (1982) (quoting amicus brief for American Psychiatric Association). 305 In Jackson v. Indiana, 406 U.S. 715, 738 (1972), the Court had said that

‘‘due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.’’ Reasoning

that if commitment is for treatment and betterment of individuals, it must be accompanied by adequate treatment, several lower courts recognized a due process

right. E.g., Wyatt v. Stickney, 325 F. Supp. 781 (M.D.Ala), enforced, 334 F. Supp.

1341 (1971), supplemented, 334 F. Supp. 373 and 344 F. Supp. 387 (M.D.Ala. 1972),

aff’d in part, reserved in part, and remanded, sub nom. Wyatt v. Aderholt, 503 F.2d

1305 (5th Cir. 1974); Donaldson v. O’Connor, 493 F.2d 507 (5th Cir. 1974), vacated

on other grounds, 432 U.S. 563 (1975).

Liberty Interests of Retarded and Mentally Ill: Commitment and Treatment.—Potentially a major development in substantive due process is the formulation of a liberty right of those

retarded or handicapped individuals who are involuntarily committed or who voluntarily seek commitment to public institutions. The

States pursuant to their parens patriae power have a substantial

interest in institutionalizing persons in need of care, both for their

own protection and for the protection of others. 301 Each individual,

on the other hand, has a due process protected interest in freedom

from confinement and personal restraint; an interest in reducing

the degree of confinement continues even for those individuals who

are properly committed. 302 Little controversy has attended the

gradual accretion of case law, now confirmed by the Supreme

Court, that due process guarantees freedom from undue physical

restraint and from unsafe conditions of confinement. 303 Whether it

also guarantees a considerable right to treatment, to ‘‘habilitation,’’ 304 is the focus of the cases now being litigated, and while

the right has been strongly recognized by a number of influential

lower court decisions 305 its treatment in the Supreme Court is as

yet tentative. Thus, Youngberg v. Romeo recognized a liberty right

to ‘‘minimally adequate or reasonable training to ensure safety and
AMENDMENT 14—RIGHTS GUARANTEED 1691

306 Youngberg v. Romeo, 457 U.S. 307, 319 (1982).

307 Id. at 318 n.23.

308 Id. at 317–18. Concurring, Justices Blackmun, Brennan, and O’Connor, argued that due process guaranteed patients at least that training necessary to prevent them from losing the skills they entered the institution with and probably

more. Id. at 325. Chief Justice Burger rejected any protected interest in training.

Id. at 329. The Court had also avoided a decision on a right to treatment in O’Connor v. Donaldson, 422 U.S. 563, 573 (1975), vacating and remanding a decision recognizing the right and thus depriving the decision of precedential value. Chief Justice Burger expressly rejected the right there also. Id. at 578. But just four days

later the Court denied certiorari to another panel decision from the same circuit relying on its Donaldson decision to establish such a right, leaving the principle alive

in that circuit. Burnham v. Department of Public Health, 503 F.2d 1319 (5th Cir.

1974), cert. denied, 422 U.S. 1057 (1975). See also Allen v. Illinois, 478 U.S. 364,

373 (1986) (dictum that person civilly committed as ‘‘sexually dangerous person’’

might be entitled to protection under the self-incrimination clause if he could show

that his confinement ‘‘is essentially identical to that imposed upon felons with no

need for psychiatric care’’).

309 Id. at 323.

310 E.g., Ohlinger v. Watson, 652 F. 2d 775, 779 (9th Cir. 1980); Welsch v.

Likins, 550 F.2d 1122, 1132 (8th Cir. 1977). Of course, lack of funding will create

problems with respect to injunctive relief as well. Cf. New York State Ass’n for Retarded Children v. Carey, 631 F.2d 162, 163 (2d Cir. 1980). It should be noted that

the Supreme Court has limited the injunctive powers of the federal courts in similar

situations also.

freedom from undue restraint.’’ 306 While the lower court had

passed upon and agreed with plaintiff’s theory of entitlement to

‘‘such treatment as will afford a reasonable opportunity to acquire

and maintain those life skills necessary to cope as effectively as

[his] capacities permit,’’ 307 the Supreme Court thought that before

it plaintiff had reduced his theory to one of ‘‘training related to

safety and freedom from restraint.’’ 308 But the Court’s concern for

federalism, its reluctance to approve judicial activism in supervising institutions, its recognition that budgetary constraints interfered with state provision of services caused it to require the lower

federal courts to defer to professional decisionmaking in determining what care was adequate. Professional decisions are presumptively valid and liability can be imposed ‘‘only when the decision by

the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that

the person responsible actually did not base the decision on such

a judgment.’’ 309 Presumably, however, the difference between liability for damages and injunctive relief will still afford federal

courts considerable latitude in enjoining institutions to better their

services in the future, even if they cannot award damages for past

failures. 310

Still other issues await plumbing. The whole area of the rights

of committed individuals will likely be explored under a sub-
1692 AMENDMENT 14—RIGHTS GUARANTEED

311See 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). 312Developmentally 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. 313See, e.g., Mills v. Rogers, 457 U.S. 291, 299–300 (1982). And see infra, pp.

1723–32 (procedural due process). 314 497 U.S. 261 (1990). 315 Id. at 286. 316 Id. at 281–82. 317 Id. at 279. 318See 497 U.S. at 287 (O’Connor, concurring); id. at 304–05 (Brennan, joined

by Marshall and Blackmun, dissenting); id. at 331 (Stevens, dissenting).

stantive and procedural due process analysis. 311 Additionally, federal legislation is becoming extensive, 312 and state legislative and

judicial development of law is highly important because the Supreme Court looks to this law as one source of the interests which

the due process clause protects. 313

‘‘Right to Die’’.—In Cruzan v. Director, Missouri Dep’t of

Health, 314 the Court upheld Missouri’s requirement that, before

nutrition and hydration may be withdrawn from a person in a persistent vegetative state, it must be demonstrated by ‘‘clear and convincing evidence’’ that such action is consistent with the patient’s

previously manifested wishes. The Due Process Clause does not require that the state rely on the judgment of the family, the guardian, or ‘‘anyone but the patient herself’’ in making this decision, the

Court concluded. 315 Thus, in the absence of clear and convincing

evidence that the patient herself had expressed an interest not to

be sustained in a persistent vegetative state, or that she had expressed a desire to have a surrogate make such a decision for her,

the state may refuse to allow withdrawal of nutrition and hydration. ‘‘A State is entitled to guard against potential abuses’’ that

can occur if family members do not protect a patient’s best interests, and ‘‘may properly decline to make judgments about the ‘quality’ of life that a particular individual may enjoy, and [instead] simply assert an unqualified interest in the preservation of human life

to be weighed against the . . . interests of the individual.’’ 316

The Court’s opinion in Cruzan ‘‘assume[d]’’ that a competent

person has a constitutionally protected right to refuse lifesaving

hydration and nutrition. 317 More important, however, a majority of

Justices separately declared that such a liberty interest exists. 318

Thus, the Court appears committed to the position that the right
AMENDMENT 14—RIGHTS GUARANTEED 1693

1 Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884); Hurtado v. California,

110 U.S. 516, 537 (1884).

to refuse nutrition and hydration is subsumed in the broader right

to refuse medical treatment. Also blurred in the Court’s analysis

was any distinction between terminally ill patients and those

whose condition has stabilized; there was testimony that the patient in Cruzan could be kept ‘‘alive’’ for about 30 years if nutrition

and hydration were continued.

PROCEDURAL DUE PROCESS: CIVIL

Some General Criteria

What due process of law means in the procedural context depends on the circumstances. It varies with the subject matter and

the necessities of the situation. Due process of law is a process

which, following the forms of law, is appropriate to the case and

just to the parties affected. It must be pursued in the ordinary

mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it

must give them an opportunity to be heard respecting the justice

of the judgment sought. Any legal proceeding enforced by public

authority, whether sanctioned by age or custom or newly devised

in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be

due process of law. 1

Ancient Use and Uniformity.—The requirements of due

process may be ascertained in part by an examination of those settled usages and modes of proceedings existing in the common and

statutory law of England during colonial times, and not unsuited

to the civil and political conditions in this country. A process of law

not otherwise forbidden may be taken to be due process of law if

it has been sanctioned by settled usage both in England and in this

country. In other words, the antiquity of a procedure is a fact of

weight in its behalf. However, it does not follow that a procedure

settled in English law and adopted in this country is, or remains,

an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be fastened upon American jurisprudence like a strait jacket, only to be

unloosed by constitutional amendment. Fortunately, the States are

not tied down by any provision of the Constitution to the practice

and procedure which existed at the common law, but may avail
1694 AMENDMENT 14—RIGHTS GUARANTEED

2 Brown v. New Jersey, 175 U.S. 172, 175 (1899); Hurtado v. California, 110

U.S. 516, 529 (1884); Twining v. New Jersey, 211 U.S. 78, 101 (1908); Anderson

Nat’l Bank v. Luckett, 321 U.S. 233, 244 (1944). 3Marchant v. Pennsylvania R.R., 153 U.S. 380, 386 (1894).

4 Ballard v. Hunter, 204 U.S. 241, 255 (1907); Palmer v. McMahon, 133 U.S.

660, 668 (1890). 5McMillen v. Anderson, 95 U.S. 37, 41 (1877).

6 Railroad Comm’n v. Rowan & Nichols Oil Co., 311 U.S. 570 (1941) (oil field

proration order). See also Railroad Comm’n v. Rowan & Nichols Oil Co., 310 U.S.

573 (1940) (courts should not second-guess regulatory commissions in evaluating expert testimony). 7Dreyer v. Illinois, 187 U.S. 71, 83–84 (1902).

8 New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 562, (1905).

9Ohio ex rel. Bryant v. Akron Park Dist., 281 U.S. 74, 79 (1930).

10 Carfer v. Caldwell, 200 U.S. 293, 297 (1906).

themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary. 2

Equality.—If due process is to be secured, the laws must operate alike upon all and not subject the individual to the arbitrary

exercise of governmental power unrestrained by established principles of private rights and distributive justice. Where a litigant

has the benefit of a full and fair trial in the state courts, and his

rights are measured, not by laws made to affect him individually,

but by general provisions of law applicable to all those in like condition, he is not deprived of property without due process of law,

even if he can be regarded as deprived of his property by an adverse result. 3

Due Process, Judicial Process, and Separation of Powers.—Due process of law does not always mean a proceeding in

court. 4 Proceedings to raise revenue by levying and collecting taxes

are not necessarily judicial, nor are administrative and executive

proceedings, yet their validity is not thereby impaired. 5 Moreover,

the due process clause does not require de novo judicial review of

the factual conclusions of state regulatory agencies. 6

Nor does the Fourteenth Amendment prohibit a State from

conferring upon nonjudicial bodies certain functions that may be

called judicial, or from delegating to a court powers that are legislative in nature. For example, state statutes vesting in a parole

board certain judicial functions, 7 or conferring discretionary power

upon administrative boards to grant or withhold permission to

carry on a trade, 8 or vesting in a probate court authority to appoint park commissioners and establish park districts 9 are not in

conflict with the due process clause and present no federal question. Whether legislative, executive, and judicial powers of a State

shall be kept altogether distinct and separate, or whether they

should in some particulars be merged, is for the determination of

the State. 10
AMENDMENT 14—RIGHTS GUARANTEED 1695

11 Holmes v. Conway, 241 U.S. 624, 631 (1916); Louisville & Nashville R.R. v.

Schmidt, 177 U.S. 230, 236 (1900). 12Snyder v. Massachusetts, 291 U.S. 97, 105 (1934); West v. Louisiana, 194

U.S. 258, 263 (1904); Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897); Jordan

v. Massachusetts, 225 U.S. 167, 176 (1912). See Boddie v. Connecticut, 401 U.S. 371

(1971), for one recent limitation. The power of a State to determine the limits of

the jurisdiction of its courts and the character of the controversies which shall be

heard in them and to deny access to its courts is also subject to restrictions imposed

by the contract, full faith and credit, and privileges and immunities clauses of the

Constitution. Angel v. Bullington, 330 U.S. 183 (1947). 13 Insurance Co. v. Glidden Co., 284 U.S. 151, 158 (1931); Iowa Central Ry. v.

Iowa, 160 U.S. 389, 393 (1896): Honeyman v. Hanan, 302 U.S. 375 (1937). See also

Lindsey v. Normet, 405 U.S. 56 (1972). 14 Cincinnati Street Ry. v. Snell, 193 U.S. 30, 36 (1904). 15Ownbey 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). 16While this statement is more generally true in the context of criminal cases,

in which the appellate process and post-conviction remedial process have been subject to considerable revision in the treatment of indigents, some requirements have

also been imposed in civil cases. Boddie v. Connecticut, 401 U.S. 371 (1971); Lindsey

v. Normet, 405 U.S. 56, 74–79 (1972); Santosky v. Kramer, 455 U.S. 745 (1982). RePower of the States to Regulate Procedure

Generally.—The due process clause of the Fourteenth Amendment does not control mere forms of procedure in state courts or

regulate practice therein. 11 A State ‘‘is free to regulate procedure

of its courts in accordance with it own conception of policy and fairness unless in so doing it offends some principle of justice so rooted

in the traditions and conscience of our people as to be ranked as

fundamental.’’ 12 Pursuant to such power, the States have regulated

the manner in which rights may be enforced and wrongs remedied, 13 and in connection therewith have created courts and endowed them with such jurisdiction as, in the judgment of their legislatures, seemed appropriate. 14 Whether legislative action in such

matters is deemed to be wise or proves efficient, whether it works

a particular hardship on a particular litigant, or perpetuates or

supplants ancient forms of procedure, are issues which can ordinarily give rise to no conflict with the Fourteenth Amendment, inasmuch as its function is negative rather than affirmative and in

no way obligates the States to adopt specific measures of reform. 15

More recent decisions, however, have imposed some restrictions on

state procedures that require substantial reorientation of process. 16
1696 AMENDMENT 14—RIGHTS GUARANTEED

view has, however, been restrained with regard to details. See, e.g., Lindsey v.

Normet, supra, 64–69. 17 Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949). Nor was the retroactive

application of this statutory requirement to actions pending at the time of its adoption violative of due process as long as no new liability for expenses incurred before

enactment was imposed thereby and the only effect thereof was to stay such proceedings until the security was furnished. 18 Boddie v. Connecticut, 401 U.S. 371 (1971). See also Little v. Streater, 452

U.S. 1 (1981) (state-mandated paternity suit); Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (parental status termination proceeding); Santosky v. Kramer, 455 U.S. 745 (1982) (permanent termination of parental custody). 19 Young Co. v. McNeal-Edwards Co., 283 U.S. 398 (1931); Adam v. Saenger,

303 U.S. 59 (1938). 20 Jones v. Union Guano Co., 264 U.S. 171 (1924).

Commencement of Actions.—A state may impose certain conditions on the right to institute litigation. Access to the courts has

been denied to persons instituting stockholders’ derivative actions

unless reasonable security for the costs and fees incurred by the

corporation is first tendered. 17 But, at least in those situations in

which the State has monopolized the avenues of settlement of disputes between persons by prescribing judicial resolution, and where

the dispute involves such a fundamental interest as marriage and

its dissolution, no State may deny to those persons unable to pay

its fees access to those judicial avenues. 18 It must be considered,

then, that foreclosure of all access to the courts, at least through

financial barriers and perhaps through other means as well, is subject to federal constitutional scrutiny and must be justified by reference to a state interest of suitable importance. In older cases, not

questioned by the more recent ones, it was held that a State, as

the price of opening its tribunals to a nonresident plaintiff, may

exact the condition that the nonresident stand ready to answer all

cross actions filed and accept any in personam judgments obtained

by a resident defendant through service of process or appropriate

pleading upon the plaintiff’s attorney of record. 19 and for similar

reasons, a requirement, without excluding other evidence, of a

chemical analysis as a condition precedent to a suit to recover for

damages resulting to crops from allegedly deficient fertilizers is not

deemed to be arbitrary or unreasonable. 20

Pleas in Abatement.—State legislation which forbids a defendant to come into court and challenge the validity of service

upon him in a personal action without thereby surrendering himself to the jurisdiction of the court, but which does not restrain him

from protecting his substantive rights against enforcement of a

judgment rendered without service of process is constitutional and

does not deprive him of property without due process of law. Such

a defendant, if he pleases, may ignore the proceedings as wholly ineffective, and set up the invalidity of the judgment if and when an
AMENDMENT 14—RIGHTS GUARANTEED 1697

21 York v. Texas, 137 U.S. 15 (1890); Kauffman v. Wootters, 138 U.S. 285, 287

(1891). 22Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133 (1915). 23Lindsey v. Normet, 405 U.S. 56, 64–69 (1972). See also Bianchi v. Morales,

262 U.S. 170 (1923) (upholding mortgage law providing for summary foreclosure of

a mortgage without allowing any defense except payment). 24 Bowersock v. Smith, 243 U.S. 29, 34, (1917); Chicago, R.I. & P. Ry. v. Cole,

251 U.S. 54, 55 (1919); Herron v. Southern Pacific Co., 283 U.S. 91 (1931). See also

Martinez v. California, 444 U.S. 277, 280–83 (1980) (State interest in fashioning its

own tort law permits it to provide immunity defenses for its employees and thus

defeat recovery). 25Ownbey v. Morgan, 256 U.S. 94 (1921). 26Sawyer v. Piper, 189 U.S. 154 (1903).

attempt is made to take his property thereunder. However, if he

desires to contest the validity of the proceedings in the court in

which it is instituted, so as to avoid even a semblance of a judgment against him, it is within the power of a State to declare that

he shall do this subject to the risk of being obliged to submit to the

jurisdiction of the court to hear and determine the merits, if the

objection raised by him as to its jurisdiction over his person shall

be overruled. 21

Defenses.—Just as a State may condition the right to institute

litigation, so may it establish terms for the interposition of certain

defenses. It may validly provide that one sued in a possessory action cannot bring an action to try title until after judgment is rendered and after he has paid that judgment, if it so provides. 22 A

State may limit the defense in an action to evict tenants for

nonpayment of rent to the issue of payment and leave the tenants

to other remedial actions at law on a claim that the landlord had

failed to maintain the premises. 23 A State may also provide that

the doctrines of contributory negligence, assumption of risk, and

fellow servant do not bar recovery in certain employment-related

accidents. No person has a vested right in such defenses. 24

Similarly, a nonresident defendant in a suit begun by foreign

attachment, even though he has no resources or credit other than

the property attached, cannot challenge the validity of a statute

which requires him to give bail or security for the discharge of the

seized property before permitting him an opportunity to appear

and defend. 25

Amendments and Continuances.—Amendment of pleadings

is largely within the discretion of the trial court, and unless a gross

abuse of discretion is shown, there is no ground for reversal. Accordingly, where the defense sought to be interposed is without

merit, a claim that due process would be denied by rendition of a

foreclosure decree without leave to file a supplementary answer is

utterly without foundation. 26
1698 AMENDMENT 14—RIGHTS GUARANTEED

27 Ballard v. Hunter, 204 U.S. 241, 259 (1907). 28Missouri, Kansas & Texas Ry. v. Cade, 233 U.S. 642, 650 (1914). 29Walters 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). 30Lowe v. Kansas, 163 U.S. 81 (1896). Consider, however, the possible bearing

of Giaccio v. Pennsylvania, 382 U.S. 399 (1966) (statute allowing jury to impose

costs on acquitted defendant, but containing no standards to guide discretion, violates due process). 31 Yazoo & Miss. R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912); Chicago &

Northwestern Ry. v. Nye Schneider Fowler Co., 260 U.S. 35, 43–44 (1922); Hartford

Life Ins. Co. v. Blincoe, 255 U.S. 129, 139 (1921); Life & Casualty Co. v. McCray,

291 U.S. 566 (1934). 32Pizitz Co. v. Yeldell, 274 U.S. 112, 114 (1927). 33Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991). 34 Id. (finding sufficient constraints on jury discretion in jury instructions and

in post-verdict review).

Costs, Damages, and Penalties.—What costs are allowed by

law is for the court to determine; an erroneous judgment of what

the law allows does not deprive a party of his property without due

process of law. 27 Nor does a statute providing for the recovery of

reasonable attorney’s fees in actions on small claims subject unsuccessful defendants to any unconstitutional deprivation. 28 Congress

may severely restrict attorney’s fees in an effort to keep an administrative claims proceeding informal. 29 Equally consistent with the

requirements of due process is a statutory procedure whereby a

prosecutor of a case is adjudged liable for costs, and committed to

jail in default of payment thereof, whenever the court or jury, after

according him an opportunity to present evidence of good faith,

finds that he instituted the prosecution without probable cause and

from malicious motives. 30 Also, as a reasonable incentive for

prompt settlement without suit of just demands of a class receiving

special legislative treatment, such as common carriers and insurance companies together with their patrons, a State may permit

harassed litigants to recover penalties in the form of attorney’s fees

or damages. 31 To deter careless destruction of human life, a State

by law may allow punitive damages to be assessed in actions

against employers for deaths caused by the negligence of their employees, 32 and may also allow punitive damages for fraud perpetrated by employees. 33 Also constitutional is the traditional common law approach for measuring punitive damages, granting the

jury wide but not unlimited discretion to consider the gravity of the

offense and the need to deter similar offenses. 34

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
AMENDMENT 14—RIGHTS GUARANTEED 1699

35 Coffey v. Harlan County, 204 U.S. 659, 663, 665 (1907). 36 National Union v. Arnold, 348 U.S. 37 (1954) (the judgment debtor had refused to post a supersedeas bond or to comply with reasonable orders designed to

safeguard the value of the judgment pending decision on appeal). 37Wheeler 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). 38 Blinn v. Nelson, 222 U.S. 1 (1911). 39Turner v. New York, 168 U.S. 90, 94 (1897).

money shall, notwithstanding that he has made restitution, suffer

not only imprisonment but also pay a fine equal to double the

amount embezzled, which shall operate as a judgment for the use

of persons whose money was embezzled. Whatever this fine is

called, whether a penalty, or punishment, or civil judgment, it

comes to the convict as the result of his crime. 35 On the other

hand, when appellant, by its refusal to surrender certain assets,

was adjudged in contempt for frustrating enforcement of a judgment obtained against it, dismissal of its appeal from the first

judgment was not a penalty imposed for the contempt, but merely

a reasonable method for sustaining the effectiveness of the State’s

judicial process. 36

Statutes of Limitation.—A statute of limitations does not deprive one of property without due process of law, unless, in its application to an existing right of action, it unreasonably limits the

opportunity to enforce the right by suit. By the same token, a State

may shorten an existing period of limitation, provided a reasonable

time is allowed for bringing an action after the passage of the statute and before the bar takes effect. What is a reasonable period,

however, is dependent on the nature of the right and particular circumstances. 37

Thus, an interval of only one year is not so unreasonable as

to be wanting in due process when applied to bar actions relative

to the property of an absentee in instances when the receiver for

such property has not been appointed until 13 years after the

former’s disappearance. 38 When a State, by law, suddenly prohibits, unless brought within six months after its passage, all actions to contest tax deeds which have been of record for two years,

no unconstitutional deprivation is effected. 39 No less valid is a

statute, applicable to wild lands, which provides that when a person has been in possession under a recorded deed continuously for

20 years and had paid taxes thereon during the same, the former

owner in that interval paying nothing, no action to recover such

land shall be entertained unless commenced within 20 years, or before the expiration of five years following enactment of said provi-
1700 AMENDMENT 14—RIGHTS GUARANTEED

40Soper 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. 41Mattson v. Department of Labor, 293 U.S. 151, 154 (1934). 42 Campbell v. Holt, 115 U.S. 620, 623, 628 (1885). 43 Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945). 44Gange Lumber Co. v. Rowley, 326 U.S. 295 (1945). 45 Campbell v. Holt, 115 U.S. 620, 623 (1885). See also Stewart v. Keyes, 295

U.S. 403, 417 (1935). 46 Home Ins. Co. v. Dick, 281 U.S. 397, 398 (1930).

sion. 40 Similarly, an amendment to a workmen’s compensation act,

limiting to three years the time within which a case may be reopened for readjustment of compensation on account of aggravation

of a disability, does not deny due process to one who sustained his

injury at a time when the statute contained no limitation. A limitation is deemed to affect the remedy only, and the period of its operation in this instance was viewed as neither arbitrary nor oppressive. 41

Moreover, as long as no agreement of the parties is violated,

a State may extend as well as shorten the time in which suits may

be brought in its courts and may even entirely remove a statutory

bar to the commencement of litigation. As applied to actions for

personal debts, a repeal or extension of a statute of limitations affects no unconstitutional deprivation of property of a debtor-defendant in whose favor such statute had already become a defense. ‘‘A

right to defeat a just debt by the statute of limitation . . . [not

being] a vested right,’’ such as is protected by the Constitution, accordingly no offense against the Fourteenth Amendment is committed by revival, through an extension or repeal, of an action on an

implied obligation to pay a child for the use of her property, 42 or

a suit to recover the purchase price of securities sold in violation

of a Blue Sky Law, 43 or a right of an employee to seek, on account

of the aggravation of a former injury, an additional award out of

a state-administered fund. 44 However, as respects suits to recover

real and personal property, when the right of action has been

barred by a statute of limitations and title as well as real ownership have become vested in the defendant, any later act removing

or repealing the bar would be void as attempting an arbitrary

transfer of title. 45 Also unconstitutional is the application of a statute of limitation to extend a period that parties to a contract have

agreed should limit their right to remedies under the contract.

‘‘When the parties to a contract have expressly agreed upon a time

limit on their obligation, a statute which invalidates . . . [said]

agreement and directs enforcement of the contract after . . . [the

agreed] time has expired’’ unconstitutionally imposes a burden in

excess of that contracted. 46
AMENDMENT 14—RIGHTS GUARANTEED 1701

47 Hawkins v. Bleakly, 243 U.S. 210, 214 (1917); James-Dickinson Co. v. Harry,

273 U.S. 119, 124 (1927). Congress’ power to provide rules of evidence and standards of proof in the federal courts stems from its power to create such courts. Vance

v. Terrazas, 444 U.S. 252, 264–67 (1980); Usery v. Turner Elkhorn Mining Co., 428

U.S. 1, 31 (1976). In the absence of congressional guidance, the Court has determined the evidentiary standard in certain statutory actions. Nishikawa v. Dulles,

356 U.S. 129 (1958); Woodby v. INS, 385 U.S. 276 (1966). 48 Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397

U.S. 358, 370 (1970) (Justice Harlan concurring)). 49Mathews v. Eldridge, 424 U.S. 319 (1976). 50 Addington v. Texas, 441 U.S. 418 (1979). 51Santosky 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). 52Stanley v. Illinois, 405 U.S. 645 (1972) (presumption that unwed fathers are

unfit parents). But see Michael H. v. Gerald D., 491 U.S. 110 (1989) (statutory presumption of legitimacy accorded to a child born to a married woman living with her

husband defeats the right of the child’s biological father to establish paternity and

visitation rights).

Evidence and Presumptions.—The establishment of presumptions and rules respecting the burden of proof is clearly within the domain of the legislative branch of government. 47 Nonetheless, the due process clause does impose limitations upon the power

to provide for the deprivation of liberty or property by a standard

of proof too lax to make reasonable assurance of accurate factfinding. Thus, ‘‘[t]he function of a standard of proof, as that concept is

embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ ’’ 48 Applying

the formula it has worked out for determining what process is due

in a particular situation, 49 the Court has held that in a civil proceeding to commit an individual involuntarily to a state mental

hospital for an indefinite period, a standard at least as stringent

as clear and convincing evidence is required. 50 Because the interest of parents in retaining custody of their children is fundamental,

the State may not terminate parental rights through reliance on a

standard of preponderance of the evidence—the proof necessary to

award money damages in an ordinary civil action—but must prove

by clear and convincing evidence that the parents are unfit. 51

Unfitness of a parent may not simply be presumed because of some

purported assumption about general characteristics, but must be

established. 52

As long as a presumption is not unreasonable and is not conclusive of the rights of the person against whom raised, however,

it does not violate the due process clause. Legislative fiat may not

take the place of fact, though, in the determination of issues involv-
1702 AMENDMENT 14—RIGHTS GUARANTEED

53Presumptions 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). 54Presumptions 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). 55The approach was not unprecedented, some older cases having voided tax legislation that presumed conclusively an ultimate fact. Schlesinger v. Wisconsin, 270

U.S. 230 (1926) (deeming any gift made by decedent within six years of death to

be a part of estate denies estate’s right to prove gift was not made in contemplation

of death); Heiner v. Donnan, 285 U.S. 312 (1932); Hoeper v. Tax Comm’n, 284 U.S.

206 (1931). 56 405 U.S. 645 (1972). 57 Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974).

ing life, liberty, or property, and a statute creating a presumption

which is entirely arbitrary and which operates to deny a fair opportunity to repel it or to present facts pertinent to one’s defense is

void. 53 On the other hand, if there is a rational connection between

what is proved and what is inferred, legislation declaring that the

proof of one fact or group of facts shall constitute prima facie evidence of a main or ultimate fact will be sustained. 54

For a brief period, the Court utilized what it called the

‘‘irrebuttable presumption doctrine’’ to curb the legislative tendency

to confer a benefit or to impose a detriment, depending for its application upon the establishment of certain characteristics from

which the existence of other characteristics are presumed. 55 Thus,

as noted, in Stanley v. Illinois, 56 the Court found invalid a construction of the state statute that presumed illegitimate fathers to

be unfit parents and that prevented them from objecting to state

wardship. Mandatory maternity leave rules of school boards requiring pregnant teachers to take unpaid maternity leave five and four

months respectively prior to the date of the expected births of their

babies were voided as creating a conclusive presumption that every

pregnant teacher who reaches a particular point of pregnancy becomes physically incapable of teaching. 57 Major controversy developed over application of the doctrine in benefits cases. Thus, while

a State may require that nonresidents must pay higher tuition

charges at state colleges than residents, and while the Court assumed that a durational residency requirement would be permissible as a prerequisite to qualify for the lower tuition, it was held

impermissible for the State to presume conclusively that because
AMENDMENT 14—RIGHTS GUARANTEED 1703

58 Vlandis v. Kline, 412 U.S. 441 (1973). 59Department of Agriculture v. Murry, 413 U.S. 508 (1973). 60Thus, 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). 61 422 U.S. 749 (1975). 62Stanley and LaFleur were distinguished as involving fundamental rights of

family and childbearing, id. at 771, and Murry was distinguished as involving an

irrational classification. Id. at 772. Vlandis, said Justice Rehnquist for the Court,

meant no more than that when a State fixes residency as the qualification it may

not deny to one meeting the test of residency the opportunity so to establish it. Id.

at 771. But see id. at 802–03 (Justice Brennan dissenting). 63 Id. at 768–70, 775–77, 785 (utilizing Dandridge v. Williams, 397 U.S. 471

(1970), Richardson v. Belcher, 404 U.S. 78 (1971), and similar cases).

the legal address of a student was outside the State at the time of

application or at some point during the preceding year he was a

nonresident as long as he remained a student. The due process

clause required that the student be afforded the opportunity to

show that he is or has become a bona fide resident entitled to the

lower tuition. 58

Moreover, a food stamp program provision making ineligible

any household that contained a member age 18 or over who was

claimed as a dependent for federal income tax purposes the prior

tax year by a person not himself eligible for stamps was voided on

the ground that it created a conclusive presumption that fairly

often could be shown to be false if evidence could be presented. 59

The rule which emerged for subjecting persons to detriment or

qualifying them for benefits was that the legislature may not presume the existence of the decisive characteristic upon a given set

of facts, unless it can be shown that the defined characteristics do

in fact encompass all persons and only those persons that it was

the purpose of the legislature to reach. The doctrine in effect afforded the Court the opportunity to choose between resort to the

equal protection clause or to the due process clause in judging the

validity of certain classifications, 60 and it precluded Congress and

legislatures from making general classifications that avoided the

administrative costs of individualization in many areas.

Utilization of the doctrine was curbed, if not halted, in Weinberger v. Salfi, 61 in which the Court upheld the validity of a Social

Security provision requiring as a qualification of receipt of benefits

as a spouse of a covered wage earner that one must have been married to the wage earner for at least nine months prior to his death.

Purporting to approve but to distinguish the prior cases in the

line, 62 the Court rather imported traditional equal protection analysis into considerations of due process challenges to statutory classifications. 63 ‘‘Extensions’’ of the prior cases to government entitlement classifications, such as the Social Security Act qualification
1704 AMENDMENT 14—RIGHTS GUARANTEED

64Weinberger v. Salfi, 422 U.S. 749, 772 (1975). 65 Vlandis, which was approved but distinguished, is only marginally in this

doctrinal area, involving as it does a right to travel feature, but it is like Salfi and

Murry in its benefit context and order of presumption. The Court has avoided deciding whether to overrule, retain, or further limit Vlandis. Elkins v. Moreno, 435 U.S.

647, 658–62 (1978). 66 In Turner v. Department of Employment Security, 423 U.S. 44 (1975), decided

after Salfi, the Court voided under the doctrine a statute making pregnant women

ineligible for unemployment compensation for a period extending from 12 weeks before the expected birth until six weeks after childbirth. But see Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1977) (provision granting benefits to miners

‘‘irrebuttably presumed’’ to be disabled is merely a way of giving benefits to all those

with the condition triggering the presumption); Califano v. Boles, 443 U.S. 282,

284–85 (1979) (Congress must fix general categorization; case-by-case determination

would be prohibitively costly). 67Walker v. Sauvinet, 92 U.S. 90 (1876); New York Central R.R. v. White, 243

U.S. 188, 208 (1917). 68Marvin v. Trout, 199 U.S. 212, 226 (1905). 69 In re Delgado, 140 U.S. 586, 588 (1891). 70Wilson v. North Carolina, 169 U.S. 586 (1898); Foster v. Kansas, 112 U.S.

201, 206 (1884). 71Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 694 (1897). 72Montana Co. v. St. Louis M. & M. Co., 152 U.S. 160, 171 (1894). 73See Jordan v. Massachusetts, 225 U.S. 167, 176 (1912). 74See Maxwell v. Dow, 176 U.S. 581, 602 (1900). 75Lindsey v. Normet, 405 U.S. 56, 77 (1972) (citing cases).

standard before it, would, said the Court, ‘‘turn the doctrine of

those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution.’’ 64 Whether the Court will now limit the doctrine to the detriment area only, exclusive of benefit programs, whether it will

limit it to those areas which involve fundamental rights or suspect

classifications, in the equal protection sense of those expressions, 65

or whether it will simply permit the doctrine to pass from the scene

remains unsettled, but it is noteworthy that it now rarely appears

on the Court’s docket. 66

Jury Trials.—Trial by jury in civil trials, unlike the case in

criminal trials, has not been deemed essential to due process, and

the Fourteenth Amendment has not been held to restrain the

States in retaining or abolishing civil juries. 67 Thus, abolition of juries in proceedings to enforce liens, 68 mandamus 69 and quo

warranto 70 actions, and in eminent domain 71 and equity 72 proceedings has been approved. States are free to adopt innovations

respecting selection and number of jurors. Verdicts rendered by ten

out of twelve jurors may be substituted for the requirement of unanimity, 73 and petit juries containing eight rather than the conventional number of twelve members may be established. 74

Appeals.—If a full and fair trial on the merits is provided, due

process does not require a State to provide appellate review. 75 But
AMENDMENT 14—RIGHTS GUARANTEED 1705

76 Id. at 74–79 (conditioning appeal in eviction action upon tenant posting bond,

with two sureties, in twice the amount of rent expected to accrue pending appeal,

is invalid when no similar provision is applied to other cases). Cf. Bankers Life &

Casualty Co. v. Crenshaw, 486 U.S. 71 (1988) (assessment of 15% penalty on party

who unsuccessfully appeals from money judgment meets rational basis test under

equal protection challenge, since it applies to plaintiffs and defendants alike and

does not single out one class of appellants). 77 95 U.S. 714 (1878). 78 Id. at 722. 79 Hazard, A General Theory of State-Court Jurisdiction, 1965 SUP. CT. REV.

241, 252–62. 80Pennoyer v. Neff, 95 U.S. 714, 733–35 (1878). The due process clause and the

remainder of the Fourteenth Amendment had not been ratified at the time of the

entry of the state-court judgment giving rise to the case. This inconvenient fact does

not detract from the subsequent settled utilization of this constitutional foundation.

Pennoyer denied full faith and credit to the judgment because the state lacked jurisdiction. 81Pennoyer v. Neff, 95 U.S. 714, 733 (1878); Scott v. McNeal, 154 U.S. 34, 64

(1894). 82 National Exchange Bank v. Wiley, 195 U.S. 257, 270 (1904); Iron Cliffs Co.

v. Negaunee Iron Co., 197 U.S. 463, 471 (1905).

if an appeal is afforded, the State must not so structure it as to

arbitrarily deny to some persons the right or privilege available to

others. 76

Jurisdiction

Generally.—Jurisdiction may be defined as the power to create legal interests. In the famous case of Pennoyer v. Neff, 77 the

Court enunciated two principles of jurisdiction respecting the

States in a federal system. First, ‘‘every State possesses exclusive

jurisdiction and sovereignty over persons and property within its

territory,’’ and, second, ‘‘no State can exercise direct jurisdiction

and authority over persons or property without its territory.’’ 78 Although these two principles were drawn from the writings of Joseph Story refining the theories of continental jurists, 79 the constitutional basis for them was deemed to be in the due process

clause of the Fourteenth Amendment. 80 From these beginnings,

the Court developed a complex set of rules defining when jurisdiction—physical power—could be exerted over persons through in

personam actions and over things, generally, through actions in

rem. 81

In proceedings in personam to determine liability of a defendant, no property having been subjected by such litigation to the

control of the court, jurisdiction over the defendant’s person is a

condition prerequisite to the rendering of any effective decree. 82

That condition is fulfilled, that is, a State is deemed capable of exerting jurisdiction over an individual if he is physically present

within the territory of the State, if he is domiciled in the State although temporarily absent therefrom, or if he has consented to the
1706 AMENDMENT 14—RIGHTS GUARANTEED

83 Arndt v. Griggs, 134 U.S. 316, 321 (1890); Grannis v. Ordean, 234 U.S. 385

(1914); Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917). 84Goodrich v. Ferris, 214 U.S. 71, 80 (1909). 85Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917); Harris v. Balk,

198 U.S. 215 (1905). 86The jurisdictional requirements for rendering a valid divorce decree are considered under the full faith and credit clause. Supra, pp. 840–50. 87The first principle, that a State may assert jurisdiction over anyone or anything physically within its borders, no matter how briefly there—the so-called ‘‘transient’’ rule of jurisdiction—McDonald v. Mabee, 243 U.S. 90, 91 (1917), remains

valid, although in Shaffer v. Heitner, 433 U.S. 186, 204 (1977), the Court’s dicta appeared to assume it is not. 88 326 U.S. 310 (1945). As the Court explained in McGee v. International Life

Ins. Co., 355 U.S. 220, 223 (1957), ‘‘[w]ith this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across

state lines. At the same time modern transportation and communication have made

it much less burdensome for a party sued to defend himself in a State where he

engages in economic activity.’’ See World-Wide Volkswagen Corp. v. Woodson, 444

U.S. 286, 293 (1980). 89Shaffer v. Heitner, 433 U.S. 186 (1977); World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286 (1980); Rush v. Savchuk, 444 U.S. 320 (1980); Kulko v. Superior Court, 436 U.S. 84 (1978).

exercise of jurisdiction over him. In actions in rem, however, a

State could validly proceed to settle controversies with regard to

rights or claims against property within its borders, notwithstanding that control of the defendant was never obtained. Accordingly,

by reason of its inherent authority over titles to land within its territorial confines, a State could proceed through its courts to judgment respecting the ownership of such property, even though it

lacked a constitutional competence to reach claimants of title who

resided beyond its borders. 83 By the same token, probate 84 and

garnishment of foreign attachment 85 proceedings, being in the nature of in rem actions for the disposition of property, or quasi in

rem, might be prosecuted to conclusion without requiring the presence of all parties in interest. 86

Over a long period of time, the mobility of American society

and the increasing complexity of commerce led to attenuation of

the second principle of Pennoyer, 87 and beginning with International Shoe Co. v. Washington, 88 the Court established the modern standard of obtaining in personam jurisdiction based upon the

nature and the quality of contacts that individuals and corporations have with a State; this ‘‘minimum contacts’’ test permits the

courts of a State through process to obtain power over out-of-state

defendants. In recent cases, the ‘‘minimum contacts’’ test has been

held applicable to all assertions of jurisdiction, so that in rem and

quasi-in-rem proceedings must now be evaluated in the context of

the defendant’s relationship to the State in which the suit is being

brought. 89
AMENDMENT 14—RIGHTS GUARANTEED 1707

90 International Shoe Co. v. Washington, 326 U.S. 310, 316, 317 (1945); Travelers Health Ass’n v. Virginia ex rel. State Corp. Comm., 339 U.S. 643, 649 (1950);

Shaffer v. Heitner, 433 U.S. 186, 204 (1977). 91 International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945); Hanson v.

Denckla, 357 U.S. 235, 251 (1958). 92World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980). 93 Id. at 294 (internal quotation from International Shoe Co. v. Washington, 326

U.S. 310, 319 (1945)). 94McDonald 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.

Basis for the territorial concept of jurisdiction promulgated in

Pennoyer and modified over the years is a two-fold construction of

due process: a concern for ‘‘fair play and substantial justice’’ involved in requiring defendants to litigate cases against them far

from their ‘‘home’’ or place of business 90 and, more important, a

concern for the preservation of federalism. 91 The Framers, the

Court has asserted, while intending to tie the States together into

a Nation, ‘‘also intended that the States retain many essential attributes of sovereignty, including, in particular, the sovereign

power to try causes in their courts. The sovereignty of each State,

in turn, implied a limitation on the sovereignty of all its sister

States—a limitation express or implicit in both the original scheme

of the Constitution and the Fourteenth Amendment.’’ 92 Thus, the

federalism principle is preeminent. ‘‘[T]he Due Process Clause ‘does

not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the

state has no contacts, ties, or relations.’ . . . Even if the defendant

would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State

has a strong interest in applying its law to the controversy; even

if the forum State is the most convenient location for litigation, the

Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render

a valid judgment.’’ 93

In Personam Proceedings Against Individuals.—As has

been noted, presence within the State with service of process is sufficient to create personal jurisdiction over an individual. 94 In the

case of a resident, absence alone will not defeat the processes of

courts in the State of his domicile; domicile alone is deemed to be

sufficient to keep him within reach of the state courts for purposes

of a personal judgment, whether obtained by means of appropriate,

substituted service or by actual personal service on the resident
1708 AMENDMENT 14—RIGHTS GUARANTEED

95Milliken v. Meyer, 311 U.S. 457 (1940). 96McDonald v. Mabee, 243 U.S. 90 (1917). 97 Rees v. Watertown, 86 U.S. (19 Wall.) 107 (1874); Coe v. Armour Fertilizer

Works, 237 U.S. 413, 423 (1915); Griffin v. Griffin, 327 U.S. 220 (1946). 98Sugg 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). 99Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230 (1900); Western Loan

& Savings Co. v. Butte & Boston Min. Co., 210 U.S. 368 (1908); Houston v. Ormes,

252 U.S. 469 (1920). See also Adam v. Saenger, 303 U.S. 59 (1938) (plaintiff suing

defendants deemed to have consented to jurisdiction with respect to counterclaims

asserted against him). 100 York v. Texas, 137 U.S. 15 (1890); Kauffman v. Wootters, 138 U.S. 285

(1891); Western Indemnity Co. v. Rupp, 235 U.S. 261 (1914). 101 Hess v. Pawloski, 274 U.S. 352 (1927): Wuchter v. Pizzutti, 276 U.S. 13

(1928); Olberding v. Illinois Central R. Co., 346 U.S. 338, 341 (1953). 102 Hess v. Pawloski, 274 U.S. 352, 356–57 (1927).

outside the State. 95 However, if the defendant, although technically domiciled therein, has left the State with no intention to return, service by publication, as compared to a summons left at his

last and usual place of abode where his family continued to reside,

is inadequate, inasmuch as it is not reasonably calculated to give

actual notice of the proceedings and opportunity to be heard. 96

With respect to a nonresident, it is clearly established that no

person can be deprived of property rights by a decree in a case in

which he neither appeared nor was served or effectively made a

party. 97 The early cases held that the process of a court of one

State could not run into another and summon a party there domiciled to respond to proceedings against him, when neither his person nor his property was within the jurisdiction of the court rendering the judgment. 98 The attenuation of the rule proceeded in

steps. Consent was, of course, sufficient to create jurisdiction, even

in the absence of any other connection between the litigation and

the forum, and for example, the appearance of the defendant for

any purpose other than to challenge the jurisdiction of the court

was deemed a voluntary submission to the court’s power, 99 and

even a special appearance may be treated as consensual submission to the court. 100 Constructive consent, therefore, was seized

upon as a basis for obtaining jurisdiction, and, with the advent of

the automobile, States were permitted, under the fiction of conditioning the use of their highways on receipt of consent to be sued

in state courts for accidents or other transactions arising out of

such use, to designate a state official as a proper person to receive

service of process in such litigation, provided only that the official

receiving notice is obligated to communicate it to the person

sued. 101 Although the Court verbalized the result in consent terms,

the basis was really the State’s power to regulate local acts dangerous to life or property. 102 This extension was necessary in order
AMENDMENT 14—RIGHTS GUARANTEED 1709

103 Id. at 355. See Flexner v. Farson, 248 U.S. 289, 293 (1919).

104 Henry L. Doherty & Co. v. Goodman, 294 U.S. 623 (1935).

105 326 U.S. 310, 316 (1945).

106 436 U.S. 84 (1978).

107Kulko had visited the State twice, seven and six years respectively before

initiation of the present action, his marriage occurring in California on the second

visit, but neither the visits nor the marriage was sufficient or relevant to jurisdiction. Id. at 92–93.

108 Id. at 92.

109 Id. at 96–98.

to permit States to assume jurisdiction over individuals ‘‘doing

business’’ within the State, inasmuch as the State could not withhold from nonresident individuals the right of doing business subject to consent to be sued. 103 Thus, the Court soon recognized that

‘‘doing business’’ within a State was itself a sufficient basis for jurisdiction over a nonresident individual, at least where the business done was exceptional enough to create a strong state interest

in regulation, and service could be effectuated within the State on

an agent appointed to carry out the business. 104

Culmination of the trend was, of course, the promulgation in

International Shoe Co. v. Washington, 105 a corporations case, of the

‘‘minimum contacts’’ test of jurisdiction. In the context of in personam jurisdiction over individuals, the test is illustrated by Kulko

v. Superior Court, 106 in which the Court held that California could

not obtain personal jurisdiction over a New York resident whose

sole relevant contact with the State was to send his daughter to

live with her mother in California. 107 ‘‘Like any standard that requires a determination of ‘reasonableness,’ the ‘minimum contacts’

test . . . is not susceptible of mechanical application; rather, the

facts of each case must be weighed to determine whether the requisite ‘affiliating circumstances’ are present.’’ 108 Without deciding

that the standard was relevant, the Court noted that the ‘‘effects’’

test of contacts, that Kulko had ‘‘caused an effect’’ in the State by

availing himself of the benefits and protections of California’s laws

and by deriving an economic benefit in the lessened expense of

maintaining the daughter in New York, was not applicable; it was

deemed by the Court to involve wrongful activity outside a State

which causes injury within the State or commercial activity affecting state residents, factors not present in this case. Any economic

benefit to Kulko was derived in New York and not in California. 109

As with many such cases, the decision was narrowly limited to its

facts and does little to clarify the standards applicable to state jurisdiction over nonresidents.
1710 AMENDMENT 14—RIGHTS GUARANTEED

110 Cf. Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 588 (1839) (corporation

has no legal existence outside the boundaries of the State chartering it). 111Lafayette 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). 112Presence was first independently used to sustain jurisdiction in International Harvester Co. v. Kentucky, 234 U.S. 579 (1914), although the possibility

was suggested as early as St. Clair v. Cox, 106 U.S. 350 (1882). See also Philadelphia & Reading Ry. v. McKibbin, 243 U.S. 264, 265 (1917) (Justice Brandeis for

Court). 113 E.g., Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U.S.

93 (1917); St. Louis S. W. Ry. v. Alexander, 227 U.S. 218 (1913). 114 E.g., Old Wayne Life Ass’n v. McDonough, 204 U.S. 8 (1907); Simon v.

Southern Railway, 236 U.S. 115, 129–130 (1915); Green v. Chicago, B. & Q. Ry.,

205 U.S. 530 (1907); Rosenberg Co. v. Curtis Brown Co., 260 U.S. 516 (1923); Davis

v. Farmers Co-operative Co., 262 U.S. 312 (1923); Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984). Continuous operations were sometimes sufficiently

substantial and of a nature to warrant assertions of jurisdiction. St. Louis S. W. Ry.

v. Alexander, 227 U.S. 218 (1913).

Suability of Foreign Corporations.—Because of the curious

status of corporations in American law, 110 the basis of the assertion of jurisdiction of the courts of a State over a foreign corporation has been even more uncertain than that with respect to individuals, although the terms have been common. First, it was asserted that inasmuch as a corporation could not carry on business

in a State without the State’s permission, the State could condition

its permission upon the corporation’s consent to submit to the jurisdiction of the State’s courts, either by appointment of someone to

receive process or in the absence of such designation. 111 Second,

the corporation by doing business in a State was deemed to be

present there and thus subject to service of process and suit because it was present. 112 Presence conflicted with the prevailing

idea of corporations as having no existence outside their State of

incorporation, but the theory was nonetheless accepted that a corporation ‘‘doing business’’ in a State to a sufficient degree was

‘‘present’’ for service of process upon its agents in the State who

carried out that business. 113 Generally, with rare exceptions, even

continuous activity of some sort by a foreign corporation within a

State did not suffice to render it amenable to suits therein unrelated to that activity. Without the protection of such a rule, it was

maintained, foreign corporations would be exposed to the manifest

hardship and inconvenience of defending, in any State in which

they happened to be carrying on business, suits for torts wherever

committed and claims on contracts wherever made. 114 And if the

corporation stopped doing business in the forum State before suit

against it was commenced, it might well escape jurisdiction alto-
AMENDMENT 14—RIGHTS GUARANTEED 1711

115 Robert Mitchell Furn. Co. v. Selden Breck Constr. Co., 257 U.S. 213 (1921):

Chipman, Ltd. v. Thomas B. Jeffery Co., 251 U.S. 373, 379 (1920). On a consent

theory, jurisdiction would continue. Washington ex rel Bond & Goodwin & Tucker

v. Superior Court, 289 U.S. 361, 364 (1933). 116Solicitation of business alone was inadequate to constitute ‘‘doing business,’’

Green v. Chicago, B. & Q. Ry., 205 U.S. 530 (1907), but when connected with other

activities would suffice to confer jurisdiction. International Harvester Co. v. Kentucky, 234 U.S. 579 (1914). See the survey of cases by Judge Hand in Hutchinson

v. Chase and Gilbert, 45 F.2d 139, 141–42 (2d Cir. 1930). 117 E.g. Goldey v. Morning News, 156 U.S. 518 (1895); Conley v. Mathieson Alkali Works, 190 U.S. 406 (1903); Riverside Mills v. Menefee, 237 U.S. 189, 195

(1915). But see Connecticut Mutual Life Ins. Co. v. Spratley, 172 U.S. 602 (1899). 118 326 U.S. 310 (1945). 119This 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.

gether. 115 The issue of the degree of activity required, in particular

the degree of solicitation necessary to constitute doing business by

a foreign corporation, was much disputed and led to very

particularistic holdings. 116 In the absence of enough activity to

constitute doing business, the mere presence within its territorial

limits of an agent, officer, or stockholder, upon whom service might

readily be had, was not effective to enable a State to acquire jurisdiction over the foreign corporation. 117

The rationales and premises of these cases were swept away

in International Shoe Co. v. Washington, 118 although, of course, the

results in many of them would stand on the basis of the ‘‘minimum

contacts’’ analysis there adopted. International Shoe, a foreign corporation, had not been issued a license to do business in the State,

but it systematically and continuously employed a force of salesmen, residents thereof, to canvass for orders therein, and was held

suable in Washington for unpaid unemployment compensation contributions in respect to such salesmen. Service of the notice of assessment personally upon one of its local sales solicitors plus the

forwarding of a copy thereof by registered mail to the corporation’s

principal office in Missouri was deemed sufficient to apprise the

corporation of the proceeding.

To reach this conclusion the Court not only overturned prior

holdings to the effect that mere solicitation of patronage does not

constitute doing of business in a state sufficient to subject a foreign

corporation to the jurisdiction thereof, 119 but also rejected the

‘‘presence’’ test as begging ‘‘the question to be decided. . . . The

terms ‘present’ or ‘presence,’’’ according to Chief Justice Stone, ‘‘are

used merely to symbolize those activities of the corporation’s agent

within the State which courts will deem to be sufficient to satisfy

the demands of due process. . . . Those demands may be met by
1712 AMENDMENT 14—RIGHTS GUARANTEED

120 International Shoe Co. v. Washington, 326 U.S. 310, 316–17 (1945). 121 Id. at 319. 122Travelers Health Ass’n v. Virginia ex rel. State Corp. Comm’n, 339 U.S. 643

(1950). The decision was 5-to–4 with one of the majority Justices also contributing

a concurring opinion. Id. at 651 (Justice Douglas). The possible significance of the

concurrence is that it appears to disagree with the implication of the majority opinion, id. at 647–48, that a State’s legislative jurisdiction and its judicial jurisdiction

are coextensive. Id. at 652–53 (distinguishing between the use of the State’s judicial

power to enforce its legislative powers and the judicial jurisdiction when a private

party is suing). See id. at 659 (dissent).

such contacts of the corporation with the State of the forum as

make it reasonable, in the context of our federal system . . . , to

require the corporation to defend the particular suit which is

brought there; [and] . . . that the maintenance of the suit does not

offend ‘traditional notions of fair play and substantial justice’. . . .

An ‘estimate of the inconveniences’ which would result to the corporation from a trial away from its ‘home’ or principal place of

business is relevant in this connection.’’ 120 As to the scope of application to be accorded this ‘‘fair play and substantial justice’’ doctrine, the Court, at least verbally, concluded that ‘‘so far as . . .

[corporate] obligations arise out of or are connected with activities

within the State, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances,

hardly be said to be undue.’’ 121 Read literally, these statements

coupled with the terms of the new doctrine lead to a reversal of

former decisions which: (1) nullified the exercise of jurisdiction by

the forum State over actions arising outside the State and brought

by a resident plaintiff against a foreign corporation doing business

therein without having been legally admitted and without having

consented to service of process of a resident agent; and (2) exempted a foreign corporation, which has been licensed by the forum

State to do business therein and has consented to the appointment

of a local agent to accept process, from suit on an action not arising

in the forum State and not related to activities pursued therein.

By an extended application of the logic of the position, a majority of the Court ruled that, notwithstanding that it solicited business in Virginia solely through recommendations of existing members and was represented therein by no agents whatsoever, a foreign mail order insurance company had through its policies developed such contacts and ties with Virginia residents that the State,

by forwarding notice to the company by registered mail only, could

institute enforcement proceedings under its Blue Sky Law leading

to a decree ordering cessation of business pending compliance with

that act. 122 The due process clause was declared not to ‘‘forbid a

State to protect its citizens from such injustice’’ of having to file

suits on their claims at a far distant home office of such company,
AMENDMENT 14—RIGHTS GUARANTEED 1713

123 Id. at 647–49. The holding in Minnesota Commercial Men’s Ass’n v. Benn,

261 U.S. 140 (1923), that a similar mail order insurance company could not be

viewed as doing business in the forum State and that the circumstances under

which its contracts with forum State citizens, executed and to be performed in its

State of incorporation, were consummated could not support an implication that the

foreign company had consented to be sued in the forum State, was distinguished

rather than formally overruled. 339 U.S. at 647. In any event, Benn, although

unmentioned in the opinion, could not survive McGee v. International Life Ins. Co.,

355 U.S. 220 (1957).

124McGee v. International Life Ins. Co., 355 U.S. 220 (1957).

125 Id. at 223. The Court also noticed the proposition that the insured could not

bear the cost of litigation away from home as well as the insurer. See also Perkins

v. Benguet Consolidating Mining Co., 342 U.S. 437 (1952), a case too atypical on

its facts to permit much generalization but which does appear to verify the implication of International Shoe that in personam jurisdiction may attach to a corporation

even where the cause of action does not arise out of the business done by defendant

in the forum State, as well as to state, in dictum, that the mere presence of a corporate official within the State on business of the corporation would suffice to create

jurisdiction if the claim arose out of that business and service were made on him

within the State. Id. at 444–45. The Court held that the State could, but was not

required to, assert jurisdiction over a corporation owning gold and silver mines in

the Philippines but temporarily (because of the Japanese occupation) carrying on a

part of its general business in the forum State, including directors’ meetings, business correspondence, banking, and the like, although it owned no mining properties

in the State.

especially in view of the fact that such suits could be more conveniently tried in Virginia where claims of loss could be investigated. 123 Likewise, under a California statute, subjecting foreign

mail order insurance companies to suit in California on insurance

contracts with residents thereof, petitioner was enabled to obtain

a valid judgment in a California court against a Texas insurer

served only by registered mail. 124 The contract between the company and the insured specified that Austin, Texas, was the place

of ‘‘making’’ and the place where liability should be deemed to

arise. The company mailed premium notices to the insured in California, and he mailed his premium payments to the company in

Texas. Acknowledging that the connection of the company with

California was tenuous—it had no office or agents in the State, no

evidence had been presented that it had solicited anyone other

than this insured for business—the Court sustained jurisdiction on

the basis that the suit was on a contract which had a substantial

connection with California. ‘‘The contract was delivered in California, the premiums were mailed there and the insured was a resident of that State when he died. It cannot be denied that California

has a manifest interest in providing effective means of redress for

its residents when their insurers refuse to pay claims.’’ 125

‘‘Looking back over the long history of litigation a trend is

clearly discernible toward expanding the permissible scope of state
1714 AMENDMENT 14—RIGHTS GUARANTEED

126McGee v. International Life Ins. Co., 355 U.S. 220, 222 (1957). An exception

exists with respect to in personam jurisdiction in domestic relations cases, at least

in some instances. E.g., Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957) (holding that

sufficient contacts afforded Nevada in personam jurisdiction over a New York resident wife for purposes of dissolving the marriage but Nevada did not have jurisdiction to terminate the wife’s claims for support). 127 357 U.S. 235 (1958). The decision was 5-to–4. See id. at 256 (Justice Black

dissenting), 262 (Justice Douglas dissenting). 128 Id. at 251. In dissent, Justice Black observed that ‘‘of course we have not

reached the point where state boundaries are without significance and I do not

mean to suggest such a view here.’’ Id. at 260.

jurisdiction over foreign corporations and other nonresidents.’’ 126

However, during the same Term, the Court found in personam jurisdiction lacking for the first time since International Shoe, and

after a long period of declining to review the exercise of state court

jurisdiction the Court pronounced firm due process limitations.

Thus, in Hanson v. Denckla, 127 the issue was whether Florida

courts obtained through use of ordinary mail and publication jurisdiction over corporate trustees of property the subject of a contest

over a will; the will had been entered into and probated in Florida,

the trustees were resident in Delaware and were indispensable

parties with claimants who were resident in Florida and who had

been personally served. Noting the trend in enlarging the ability of

the States to obtain in personam jurisdiction over absent defendants, the Court denied that the States could exercise nationwide in

personam jurisdiction and said that ‘‘it would be a mistake to assume that this trend heralds the eventual demise of all restrictions

on the personal jurisdiction of state courts.’’ 128 The Court recognized that Florida law was the most appropriate law to be applied

in determining the validity of the will and that the corporate defendants might be little inconvenienced by having to appear in

Florida courts, but it denied that either circumstance satisfied the

due process clause. The due process restrictions did more than

guarantee immunity from inconvenient or distant litigation. ‘‘They

are consequences of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless

he has the ‘minimum contacts’ with that State that are a prerequisite to its exercise of power over him.’’ The only contacts the

corporate defendants had in Florida consisted of a relationship with

the individual defendants. ‘‘The unilateral activity of those who

claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be

some act by which the defendant purposefully avails himself of the
AMENDMENT 14—RIGHTS GUARANTEED 1715

129 Id. at 251, 253–54. Justice Black argued that the relationship of the nonresident defendants, of the subject of the litigation to the forum State, upon an analogy of choice of law and forum non conveniens, made Florida the natural and constitutional basis for asserting jurisdiction. Id. at 258–59. The Court has numerous

times asserted that contacts sufficient for the purpose of designating a particular

State’s law as appropriate may be insufficient for the purpose of asserting jurisdiction. See Shaffer v. Heitner, 433 U.S. 186, 215 (1977); Kulko v. Superior Court, 436

U.S. 84, 98 (1978); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294–

95 (1980). On the due process limits on choice of law decisions, see Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981). 130 444 U.S. 286 (1980). 131 Id. at 297. 132 Id. at 299.

privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. . . . The settlor’s

execution in Florida of her power of appointment cannot remedy

the absence of such an act in this case.’’ 129

In World-Wide Volkswagen Corp. v. Woodson, 130 the Court applied its ‘‘minimum contacts’’ test to preclude the assertion of jurisdiction over two foreign corporations that did no business in the

forum State. Plaintiffs sustained personal injuries in Oklahoma in

an accident involving an alleged defect in their automobile, which

they had purchased the previous year in New York, while they

were New York residents, and which they were driving through

Oklahoma on their way to a new residence in Arizona. Defendants

were the automobile retailer and its wholesaler, New York corporations that did no business in Oklahoma. The Court found no circumstances justifying assertion by Oklahoma courts of jurisdiction

over defendants. They (1) carried on no activity in Oklahoma, (2)

closed no sales and performed no services there, (3) availed themselves of none of the benefits of the State’s laws, (4) solicited no

business there either through salespersons or through advertising

reasonably calculated to reach the State, and (5) sold no cars to

Oklahoma residents or indirectly served or sought to serve the

Oklahoma market. The unilateral action of the purchasers in driving the car to Oklahoma was insufficient to create the kinds of requisite contacts. While it might have been foreseeable that the automobile would travel to Oklahoma, foreseeability is relevant only insofar as ‘‘the defendant’s conduct and connection with the forum

State are such that he should reasonably anticipate being haled

into court there.’’ 131 Further, ‘‘whatever marginal revenues petitioners may receive by virtue of the fact that their products are capable of use in Oklahoma is far too attenuated a contact to justify

that State’s exercise of in personam jurisdiction over them.’’ 132

Thus, a defendant must, as the Court said in Denckla, ‘‘purposefully [avail] itself of the privilege of conducting activities within the
1716 AMENDMENT 14—RIGHTS GUARANTEED

133 Hanson v. Denckla, 357 U.S. 235, 253 (1985), quoted in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). 134 Id. at 298. Of the three dissenters, Justice Brennan argued that the ‘‘minimum contacts’’ test was obsolete and that jurisdiction should be predicated upon the

balancing of the interests of the forum State and plaintiffs against the actual burden imposed on defendant, id. at 299, while Justices Marshall and Blackmun applied the test and found jurisdiction because of the foreseeability of defendants that

a defective product of theirs might cause injury in a distant State and because the

defendants had entered into an interstate economic network. Id. at 313. The balancing of interests test was applied in Asahi Metal Industry Co. v. Superior Court,

480 U.S. 102 (1987), holding unreasonable exercise of jurisdiction by a California

court over an indemnity action by a Taiwan tire manufacturer against a Japanese

manufacturer of tire valves, the underlying damage action by a California motorist

having been settled. 135Keeton v. Hustler Magazine, 465 U.S. 770 (1984) (holding as well that the

forum state may apply ‘‘single publication rule’’ making defendant liable for nationwide damages). 136 Calder v. Jones, 465 U.S. 783 (1984) (jurisdiction over reporter and editor

responsible for defamatory article which they knew would be circulated in subject’s

home state). 137 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). But cf. Helicopteros

Nacionales de Colombia v. Hall, 466 U.S. 408 (1984) (purchases and training within

state, both unrelated to cause of action, are insufficient to justify general in personam jurisdiction).

forum State,’’ 133 if not by carrying on business there within the

constitutional sense, at least by delivering ‘‘its products into the

stream of commerce with the expectation that they will be purchased by consumers in the forum State.’’ 134

The Court has applied International Shoe principles in several

more situations. Circulation of a magazine in the forum state is an

adequate basis for jurisdiction over the corporate magazine publisher in a libel action; the fact that the plaintiff has no contact

with the forum state is not dispositive since the inquiry focuses on

the relations among the defendant, the forum, and the litigation. 135 On the other hand, damage done to the plaintiff’s reputation in his home state caused by circulation of a defamatory magazine article there may justify assertion of jurisdiction that would

otherwise be absent. 136 While there is no per se rule that a contract with an out-of-state party automatically establishes jurisdiction to enforce the contract in the other party’s forum, a franchisee

who has entered into a franchise contract with an out-of-state corporation may be subject to suit in the corporation’s home state

where the overall circumstances (contract terms themselves, course

of dealings) demonstrate a deliberate reaching out to establish contacts with the franchisor in the franchisor’s home state. 137

Actions in Rem: Proceedings Against Land.—The basis of

in rem jurisdiction is the power of a State to determine title to all

property, whether tangible or intangible, located within its bor-
AMENDMENT 14—RIGHTS GUARANTEED 1717

138 Arndt v. Griggs, 134 U.S. 316, 320–21, 323 (1890); Pennoyer v. Neff, 95 U.S.

714 (1878). 139 Boswell’s Lessee v. Otis, 50 U.S. (9 How.) 336, 348 (1850). 140 American Land Co. v. Zeiss, 219 U.S. 47 (1911); Tyler v. Judges of the Court

of Registration, 175 Mass. 71, 76, 55 N.E. 812, 814 (Chief Justice Holmes), appeal

dismissed, 179 U.S. 405 (1900). 141 Huling v. Kaw Valley Ry. & Improvement Co., 130 U.S. 559 (1889). 142The Confiscation Cases, 87 U.S. (20 Wall.) 92 (1874). 143 Clarke v. Clarke, 178 U.S. 186 (1900); Riley v. New York Trust Co., 315 U.S.

343 (1942). 144Pennoyer v. Neff, 95 U.S. 714 (1878). 145 Arndt v. Griggs, 134 U.S. 316 (1890); Ballard v. Hunter, 204 U.S. 241 (1907);

Security Savings Bank v. California, 263 U.S. 282 (1923). 146Mullane 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). 147 433 U.S. 186 (1977). 148 Id. at 212.

ders. 138 Unlike jurisdiction in personam, a judgment entered by a

court with in rem jurisdiction does not bind the defendant personally but determines the title to or status of only the property in

question. 139 Proceedings brought to register title to land, 140 to condemn 141 or confiscate 142 real or personal property, or to administer a decedent’s estate 143 are typical in rem actions. Due process

is satisfied by seizure of the res and notice to all who have or may

have interests therein. 144 It was formally the case that in in rem

actions a court could acquire jurisdiction over nonresidents by mere

constructive service of process, 145 under the theory that property

was always in possession of its owners and that seizure would afford them notice, inasmuch as they would keep themselves apprised of the state of their property. That this was a fiction not satisfying the requirements of due process has been established and,

whatever the nature of the proceeding, notice must be given in a

manner that actually notifies the person being sought or that has

a reasonable certainty of resulting in such notice. 146

Although the Court’s holding in Shaffer v. Heitner 147 ‘‘that all

assertions of state-court jurisdiction must be evaluated according to

the [‘minimum contacts’] standards set forth in International

Shoe’’ 148 requires an assessment of all decided cases based upon

now disavowed tests, it does not appear that the results will appreciably change for in rem jurisdiction over property. ‘‘[T]he presence

of property in a State may bear on the existence of jurisdiction by

providing contacts among the forum State, the defendant, and the

litigation. For example, when claims to the property itself are the

source of the underlying controversy between the plaintiff and the

defendant, it would be unusual for the State where the property is

located not to have jurisdiction. In such cases, the defendant’s

claim to property located in the State would normally indicate that
1718 AMENDMENT 14—RIGHTS GUARANTEED

149 Id. at 207–08 (footnote citations omitted). The Court also suggested that the

State would usually have jurisdiction in cases such as those arising from injuries

suffered on the property of an absentee owner, where the defendant’s ownership of

the property is conceded but the cause of action is otherwise related to rights and

duties growing out of that controversy. Id. 150 95 U.S. 714 (1878). Cf. Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271

(1917); Corn Exch. Bank v. Commissioner, 280 U.S. 218, 222 (1930); Endicott Co.

v. Encyclopedia Press, 266 U.S. 285, 288 (1924). 151This theory of notice was disavowed sooner than the theory of jurisdiction.

Supra, p. 1716. 152 Atkinson v. Superior Court, 49 Cal. 2d 338, 316 P. 2d 960 (1957), appeal dismissed, 357 U.S. 569 (1958) (debt seized in California was owed to a New Yorker,

but it had arisen out of transactions in California involving the New Yorker and

the California plaintiff). 153Seider v. Roth, 17 N.Y. 2d 111, 269 N.Y.S. 2d 99, 216 N.E. 2d 312 (1966).

he expected to benefit from the State’s protection of his interest.

The State’s strong interests in assuring the marketability of property within its borders and in providing a procedure for peaceful

resolution of disputes about the possession of that property would

also support jurisdiction, as would the likelihood that important

records and witnesses will be found in the State.’’ 149 Thus, for

‘‘true’’ in rem actions, the old results likely still prevail.

Actions in Rem: Attachment Proceedings.—Although the

practice of attachment goes back to colonial times, Pennoyer v.

Neff 150 was also the most relevant case for a long time respecting

the power of a State to permit an attachment of real and personal

property situated within its borders belonging to a nonresident to

satisfy a debt owed by the nonresident to one of its citizens or to

settle a claim for damages founded upon a wrong inflicted on the

citizen by the nonresident. Being neither present within the State

nor domiciled therein, the nonresident defendant could not be

served personally, and any judgment in money obtained against

him would be unenforceable. The solution was a form of in rem proceeding, sometimes called ‘‘quasi in rem,’’ involving a levy of a writ

of attachment on the local property of the defendant, of which proceeding the non-resident need be notified merely by publication, 151

and satisfaction of the judgment from the property attached; if the

attached property was insufficient to satisfy the claim, the plaintiff

could go no further.

This form of proceeding raised many questions. Of course,

there were always instances in which it was fair to subject a person to suit on his property located in the forum State, as where the

property was related to the matter sued over. 152 In others, the

question was more disputed, as in the famous case in which the

property subject to attachment was the obligation of the defendant’s insurance company to defend and pay the judgment. 153 But
AMENDMENT 14—RIGHTS GUARANTEED 1719

154 198 U.S. 215 (1905). 155 Compare New York Life Ins. Co. v. Dunlevy, 241 U.S. 518 (1916) (action purportedly against property within State, proceeds of an insurance policy, was really

an in personam action against claimant and, claimant not having been served, the

judgment is void). But see Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71

(1961). 156 433 U.S. 186 (1977). 157 Id. at 207 (internal quotation from RESTATEMENT (SECOND) OF CONFLICT OF

LAWS 56, Introductory Note (1971)).

158 Id. The characterization of actions in rem as being not actions against a res

but against persons with interests merely reflects Justice Holmes’ insight in Tyler

v. Judges of the Court of Registration, 175 Mass. 71, 76–77, 55 N.E., 812, 814, appeal dismissed, 179 U.S. 405 (1900).

the extension of the principle in Harris v. Balk 154 squarely raised

the issue of fairness and territoriality. The claimant was a Maryland resident who was owed a debt by Balk, a North Carolina resident. Apparently adventitiously, Harris, also a North Carolina resident and owing Balk an amount of money, was found passing

through Maryland by the Maryland resident and his debt to Balk

was attached to satisfy the debt owed to the Marylander. Balk had

no notice of the action and a default judgment was entered, after

which Harris paid over the judgment to the Marylander. When

Balk later sued Harris in North Carolina to recover on his debt,

Harris defended that he had been relieved of any further obligation

by satisfying the judgment in Maryland, and the Supreme Court

sustained his defense, ruling that jurisdiction had been properly

obtained and the Maryland judgment was thus valid. 155

Harris v. Balk was overruled in Shaffer v. Heitner, 156 in which

the Court held that the ‘‘minimum contacts’’ test of International

Shoe applied to all in rem and quasi in rem actions. The case arose

under a Delaware sequestration statute under which plaintiffs

were authorized to bring actions against nonresident defendants by

attaching their ‘‘property’’ within Delaware, the property consisting

of shares of corporate stock and options to stock in the defendant

corporation, the stock being considered to be in Delaware because

of the incorporation in Delaware, although none of the certificates

representing the seized stocks was physically present in Delaware.

The reason for applying the same test as is applied in in personam

cases, the Court said, ‘‘is simple and straightforward. It is premised

on recognition that ‘[t]he phrase ‘‘judicial jurisdiction over a thing,’’

is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing.’ ’’ 157 Thus, ‘‘[t]he recognition leads to

the conclusion that in order to justify an exercise of jurisdiction in

rem, the basis for jurisdiction must be sufficient to justify exercising ‘jurisdiction over the interests of persons in a thing.’ ’’ 158
1720 AMENDMENT 14—RIGHTS GUARANTEED

159 444 U.S. 320 (1980).

160 Id. 328–30. In dissent, Justices Brennan and Stevens argued that what the

state courts had done was the functional equivalent of direct-action statutes. Id. at

333 (Justice Stevens); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299

(1980) (Justice Brennan). The Court, however, refused so to view the Minnesota garnishment action, saying that ‘‘[t]he State’s ability to exert its power over the ‘nominal defendant’ is analytically prerequisite to the insurer’s entry into the case as a

garnishee.’’ Id. at 330–31. Presumably, the comment is not meant to undermine the

validity of such direct-action statutes, which was upheld in Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954), a choice-of-law case rather than a jurisdiction case.

161Supra, p. 1718 n.153. See O’Conner v. Lee-Hy Paving Corp., 579 F.2d 194

(2d Cir.), cert. denied, 439 U.S. 1034 (1978).

162Goodrich v. Ferris, 214 U.S. 71, 80 (1909); McCaughey v. Lyall, 224 U.S. 558

(1912).

163 Baker v. Baker, Eccles & Co., 242 U.S. 394 (1917); Riley v. New York Trust

Co., 315 U.S. 343 (1942).

164 Id. at 353.

A further tightening of jurisdictional standards occurred in

Rush v. Savchuk. 159 The plaintiff was injured in a one-automobile

accident in Indiana while a passenger in an automobile driven by

defendant. Plaintiff later moved to Minnesota and sued defendant,

still resident in Indiana, in state court in Minnesota. There were

no contacts between the defendant and Minnesota, but defendant’s

insurance company did business there and plaintiff garnished the

insurance contract, signed in Indiana, under which the company

was obligated to defend defendant in litigation and indemnify him

to the extent of the policy limits. The Court refused to permit jurisdiction to be grounded on the contract; the contacts justifying jurisdiction must be those of the defendant engaging in purposeful activity related to the forum. 160 Rush thus resulted in the demise of

the controversial Seider v. Roth doctrine, which lower courts had

struggled to save after Shaffer v. Heitner. 161

Actions in Rem: Estates, Trusts, Corporations.—Probate

administration, being in the nature of a proceeding in rem, is one

to which all the world is charged with notice. 162 Generally, probate

will be opened in the proper court of the decedent’s domicile, and

as to the assets in that State the probate judgment is in rem and

determinative as to all; insofar as it affects property, land or personalty, beyond the State, the judgment is in personam and can

bind only parties thereto or their privies. 163 That is, the full faith

and credit clause and statute would not prevent an attack in the

forum of the situs of the property on the first court’s finding of

domicile as a predicate to deciding the disposition of the property. 164 The difficulty of characterization of the existence of the res

in a particular jurisdiction is illustrated by the in rem aspects of
AMENDMENT 14—RIGHTS GUARANTEED 1721

165 357 U.S. 235 (1957). The in personam aspect of this decision is considered

supra, p. 1714. 166 Id. at 246. 167 Id. at 247–50. The four dissenters, Justices Black, Burton, Brennan, and

Douglas, believed that the transfer in Florida of $400,000 made by a domiciliary and

affecting beneficiaries, almost all of whom lived in that State, gave rise to a sufficient connection with Florida to support an adjudication by its courts of the effectiveness of the transfer. Id. at 256, 262. 168 Hamilton v. Brown, 161 U.S. 256 (1896); Security Savings Bank v. California, 263 U.S. 282 (1923). See also Voeller v. Neilston Co., 311 U.S. 531 (1941). 169 339 U.S. 306 (1950).

Hanson v. Denckla. 165 There, the decedent, while a resident of

Pennsylvania, created a trust with a Delaware corporation as trustee. She reserved the power to appoint the remainder, after her reserved life estate, either by testamentary disposition or by inter

vivos instrument. After she moved to Florida, she executed a new

will and a new power of appointment under the trust, which did

not satisfy the requirements for testamentary disposition under

Florida law. Upon her death, dispute arose as to whether the property passed pursuant to the terms of the power of appointment or

in accordance with the residuary clause of the will. While the Florida courts had in personam jurisdiction over individual defendants,

they attempted to assert in rem jurisdiction over the Delaware corporation. Asserting the old theory that a court’s in rem jurisdiction

‘‘is limited by the extent of its power and by the coordinate authority of sister States,’’ 166 i.e., whether the court has jurisdiction over

the thing, the Court thought it clear that the trust assets that were

the subject of the suit were located in Delaware and thus the Florida courts had no in rem jurisdiction. The Court did not expressly

consider whether the International Shoe test should apply to such

in rem jurisdiction, as it has now held it generally must, but it did

briefly consider whether Florida’s interests arising from its authority to probate and construe its domiciliary’s will, under which the

foreign assets might pass, were a sufficient basis of in rem jurisdiction and decided they were not. 167 The effort of International Shoe

in this area is still to be discerned.

The old Pennoyer rule, that seizure of property was sufficient

to give notice to nonresident or absent defendants, was likewise applied in statutory proceedings for the forfeiture of abandoned property. Judgments in proceedings to determine succession to property

in escheat were held binding on all when personal service of summons was made on all known claimants and constructive notice by

publication to all claimants who were unknown or nonresident. 168

But in Mullane v. Central Hanover Bank & Trust Co., 169 the Court

held that the characterization of an action as in rem or in personam did not determine what process was due in a statutory proce-
1722 AMENDMENT 14—RIGHTS GUARANTEED

170Western Union Telegraph Co. v. Pennsylvania, 368 U.S. 71 (1961); Texas v.

New Jersey, 379 U.S. 674 (1965). 171 ‘‘There . . . must be a basis for the defendant’s amenability to service of

summons. Absent consent, this means there must be authorization for service of

summons on the defendant.’’ Omni Capital Int’l v. Rudolph Wolff & Co., 484 U.S.

97 (1987). 172Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). 173McDonald v. Mabee, 243 U.S. 90, 92 (1971). 174Greene v. Lindsey, 456 U.S. 444, 449 (1982).

dure whereby a bank managing a common trust fund in favor of

nonresident as well as resident beneficiaries could obtain a judicial

settlement of accounts which was conclusive on all, with the only

notice being publication in a local paper. Such notice by publication

was necessarily sufficient as to beneficiaries whose interests or addresses were unknown to the bank, the Court held, but as to those,

resident and nonresident alike, whose whereabouts were known, it

was feasible to make serious efforts to notify them at least by mail

to their addresses on record with the bank. The rule has been applied in the escheat situation, and the Court finding that a ‘‘contacts’’ test would not be workable in this field has held that, inasmuch as due process would prevent more than one State from escheating a given item of property, because of ease of administration

rather than logic and jurisdiction, the State of residence shown by

the last known address on a company’s books would have the authority to take by escheat the uncollected claims against a corporation located in a particular State. 170

Notice: Service of Process.—It is not enough, however, that

a State be potentially capable of exercising control over persons

and property. Before a State legitimately can exercise such power

to alter private interests, its jurisdiction must be perfected by the

employment of an appropriate mode of serving process deemed effective to acquaint all parties of the institution of proceedings calculated to affect their rights. 171 ‘‘An elementary and fundamental

requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’’ 172

Personal service guarantees actual notice of the pendency of a legal

action; it thus presents the ideal circumstance under which to commence legal proceedings against a person, and has traditionally

been deemed necessary in actions styled in personam. 173 But less

rigorous notice procedures have been accepted, in light of history

and of the practical obstacles to providing personal service in every

instance, and these procedures do not carry with them the same

certainty of actual notice that inheres in personal service. 174 But,

whether the action be in rem or in personam, there is a constitu-
AMENDMENT 14—RIGHTS GUARANTEED 1723

175 In Greene v. Lindsey, 456 U.S. 444 (1982), the Court held that in light of

substantial evidence that notices posted on the doors of apartments in a housing

project in an eviction proceeding were often torn down by children and others before

tenants ever saw them, service by posting did not comport with due process. Without requiring it, the Court observed that the mails provided an efficient and inexpensive means of communication upon which prudent men could rely and that notice by mail would provide a reasonable assurance of notice. Id. at 455. See also

Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983) (personal service or notice

by mail is required for mortgagee of real property subject to tax sale); Tulsa Professional Collection Servs. v. Pope, 485 U.S. 478 (1988) (notice by mail or other appropriate means to reasonably ascertainable creditors of probated estate). 176 E.g., McGee v. International Life Ins. Co., 355 U.S. 220 (1957); Travelers

Health Ass’n ex rel. State Corp. Comm’n, 339 U.S. 643 (1950). 177See, 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). 178Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). 179 E.g., Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954) (authorizing direct action against insurance carrier rather than against the insured).

tional minimum; if it be shown that the notice used was not reasonably calculated to provide the necessary information, its age and

history will not sustain it. 175

The function of mail, indeed, as conveying sufficient notice, has

become quite established, 176 and the development of the ability of

States, quite contrary to the Pennoyer theory, to assert in personam

jurisdiction extraterritorially upon individuals and corporations

having ‘‘minimum contacts’’ with the forum State, resulted in the

passage of ‘‘long-arm’’ jurisdictional statutes under which notice

was practically always by mail. 177 In a class action, due process is

satisfied by notification by mail of out-of-state class members, with

opportunity to ‘‘opt out’’ but with no requirement that inclusion in

the class be contingent upon affirmative response. 178 Other service

devices, and substitutions, have been pursued and show some

promise of further loosening of the concept of territoriality even

while complying with minimum due process standards of notice. 179

The Procedure Which Is Due Process

The Interests Protected: Entitlements and Positivist Recognition.—‘‘The requirements of procedural due process apply only

to the deprivation of interests encompassed by the Fourteenth

Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is

paramount. But the range of interests protected by procedural due
1724 AMENDMENT 14—RIGHTS GUARANTEED

180 Board of Regents v. Roth, 408 U.S. 564, 569–70 (1972). Developments under

the Fifth Amendment’s due process clause have been interchangeable. Cf. Arnett v.

Kennedy, 416 U.S. 134 (1974). 181Morrissey v. Brewer, 408 U.S. 471, 481 (1982).

process is not infinite.’’ 180 Whether any procedural protections are

due depends upon an analysis which of ‘‘whether the nature of the

interest is one within the contemplation of the ‘liberty or property’

language of the Fourteenth Amendment.’’ 181 Traditionally, the

Court has accorded due process recognition to one’s ‘‘life, liberty, or

property’’ as determined by reference to common understanding, as

embodied in the development of the common law. One’s right of life

existed independently of any formal guarantee of it and could be

taken away only by the state pursuant to the formal processes of

law for offenses against law deemed by a legislative body to be particularly heinous. One’s liberty, one’s freedom from bodily restraint,

was a natural right to be forfeited only pursuant to law and strict

formal procedures. One’s ownership of lands, chattels, and other

properties, to be sure, was highly dependent upon legal protections

of rights commonly associated with that ownership, but it was a

concept universally understood in Anglo-American countries.

Expansion of the understanding embodied in the ‘‘liberty and

property’’ aspects of the clause began in the 1960s and followed an

inconsistent path of acceleration and reining-in to the present. It

has previously been noted that the Court’s construction of ‘‘liberty’’

has long been much broader than would be encompassed within

freedom from bodily restraint; while liberty of contract met its demise, the rise of rights of privacy, which included marital and intimate relationships, interests in one’s dignity and reputational concerns, and the like, continues to lead to enlargement of the compass of the doctrine. A widening of the ‘‘property’’ concept in the

1960s occurred with respect to according protection to such public

benefits as welfare assistance and other benefits and privileges

that government conferred and that it could withdraw altogether

for everyone, but as to which individual recipients and claimants

had to be accorded proper procedures before they could lose their

entitlement. Similarly, other kinds of conditional property rights,

such as the interest of an installment buyer of goods in retaining

control until it could be shown he was in default, were accorded

greater protection.

The key to this expansion may be found in the intertwined doctrinal strands of jurisprudential theory under which the ‘‘rightprivilege’’ distinction was abandoned and a positivist conception of

entitlements arose. The former principle, discussed previously in
AMENDMENT 14—RIGHTS GUARANTEED 1725

182Supra, pp. 1084–90. 183McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 2d 517, 522

(1892). 184 Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff’d by an equally divided Court, 314 U.S. 918 (1951); Adler v. Board of Educ., 342 U.S. 485 (1952). 185Flemming v. Nestor, 363 U.S. 603 (1960). 186 Barsky v. Board of Regents, 347 U.S. 442 (1954). 187Perry v. Sinderman, 408 U.S. 593, 597 (1972). See Speiser v. Randall, 357

U.S. 513 (1958). 188See William Van Alstyne, The Demise of the Right-Privilege Distinction in

Constitutional Law, 81 HARV. L. REV. 1439 (1968). Much of the old fight had to do

with imposition of conditions on admitting corporations into a State. Cf. Western &

Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656–68 (1981) (reviewing the cases). That the right-privilege distinction is not totally moribund is evident. See Buckley v. Valeo, 424 U.S. 1, 108–09 (1976) (sustaining as qualification

for public financing of campaign agreement to abide by expenditure limitations otherwise unconstitutional); Wyman v. James, 400 U.S. 309 (1971). 189That is, Congress or a state legislature could simply take away part or all

of the benefit. Richardson v. Belcher, 404 U.S. 78 (1971); United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980); Logan v. Zimmerman Brush Co.,

455 U.S. 422, 432–33 (1982).

the First Amendment context, 182 was pithily summarized by Justice Holmes years ago in dismissing a suit by a policeman protesting the dismissal from his job. ‘‘The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be

a policeman.’’ 183 Most often, the assertion that one had no ‘‘vested

property interest’’ in something was made to justify the taking of

that interest or the disregarding of that interest without substantive restraints being relevant, but it was also true that it was

said that if something was ‘‘only’’ a privilege, such as government

employment 184 or some form of public assistance, 185 procedural

due process guarantees were also inapplicable. 186 In other words,

if government need not provide something, it could provide it with

any attached conditions it might choose. This line of thought was

always opposed by the ‘‘unconstitutional conditions’’ doctrine, under

which it was said that ‘‘even though a person has no ‘right’ to a

valuable government benefit and even though the government may

deny him the benefit for any number of reasons, it may not do so

on a basis that infringes his constitutionally protected interests—

especially, his interest in freedom of speech.’’ 187 Nonetheless, the

two doctrines coexisted in an unstable relationship, until, in the

1960s and thereafter, the right-privilege distinction was largely

shelved. 188

Concurrently with the virtual demise of the ‘‘right-privilege’’

distinction, there arose the ‘‘entitlement’’ doctrine, under which the

Court erected a barrier of procedural—but not substantive—protections against erroneous governmental deprivation of something it

might within its discretion have bestowed. 189 Thus, the Court

found protected interests created by positive state enactments or
1726 AMENDMENT 14—RIGHTS GUARANTEED

190 397 U.S. 254 (1970). 191 Id. at 261–62. See also Mathews v. Eldridge, 424 U.S. 319 (1976) (Social Security benefits). 192Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). 193Fuentes v. Shevin, 407 U.S. 67 (1972). 194 Bell v. Burson, 402 U.S. 535 (1971). Compare Dixon v. Love, 431 U.S. 105

(1977) with Mackey v. Montrym, 443 U.S. 1 (1979).

practices; that is, the source of a right was ascertained not from

tradition or the common law or ‘‘natural rights,’’ but rather a property or liberty interest was discerned in the governmental statute

or practice that gave rise to it. Indeed, for a time it appeared that

this positivist conception of rights was going to displace the previous traditional sources.

That advent of the new doctrine may be placed in Goldberg v.

Kelly. 190 The Court held that, inasmuch as termination of welfare

assistance pending resolution of a controversy over eligibility may

deprive an eligible recipient of the means of livelihood, government

must provide a pre-termination evidentiary hearing in which an

initial determination of the validity of the dispensing agency’s

grounds for discontinuance of payment could be made. It was observed that the state agency did ‘‘not contend that procedural due

process is not applicable to the termination of welfare benefits.

Such benefits are a matter of statutory entitlement for persons

qualified to receive them.’’ 191 Provisions for loss of some benefit or

privilege upon the establishing of some ground for taking it away

was perceived as giving the holder a property interest entitling him

to proper procedure before termination or revocation.

Therefore, a wage garnishment statute which failed to provide

for notice to the garnishee and an opportunity for the making of

some form of determination that the garnisher is likely to prevail

before the garnishee is deprived of the use of his money, even temporarily, was held not to accord due process. 192 Similarly voided

was a repleven statute which authorized the authorities to seize

goods simply upon the filing of an ex parte application and the

posting of bond and the allegation that the possessor of the property was in arrears on payment on the goods and that they reverted to the seller. 193 A state motor vehicle financial responsibility law which provided that the registration and license of an uninsured motorist involved in an accident was to be suspended unless

he posted security for the amount of damages claimed by an aggrieved party without affording the driver any opportunity to raise

the issue of liability prior to suspension violated the due process

clause. 194

The Court’s emphasis in these cases upon the importance to

the claimant of retention of the rights led some lower courts to de-
AMENDMENT 14—RIGHTS GUARANTEED 1727

195 Board of Regents v. Roth, 408 U.S. 564, 569–71 (1972). 196 Id. at 577. 197 Id. at 576–78. The Court also held that no liberty interest was implicated,

because in declining to rehire Roth the State had not made any charges against him

or taken any actions that would damage his reputation or stigmatize him. Id. at

572–75. For an instance of protection accorded a claimant on the basis of such an

action, see Codd v. Vegler, 429 U.S. 624 (1977). See also Bishop v. Wood, 426 U.S.

341, 347–50 (1976); Vitek v. Jones, 445 U.S. 480, 491–494 (1980); Board of Curators

v. Horowitz, 435 U.S. 78, 82–84 (1978). 198 408 U.S. 593 (1972). See Leis v. Flynt, 439 U.S. 438 (1979) (finding no practice or mutually explicit understanding creating interest). 199 416 U.S. 134 (1974).

termine the application of the due process clause by assessing the

weights of the interests involved and the harm done to one who

lost what he was claiming. This approach, the Court held, was inappropriate. ‘‘[W]e must look not to the ‘weight’ but to the nature

of the interest at stake. . . . We must look to see if the interest is

within the Fourteenth Amendment’s protection of liberty and property.’’ 195 To have a property interest in the constitutional sense,

the Court held, it was not enough that one have an abstract need

or desire for a benefit, that one have only a unilateral expectation.

He must rather ‘‘have a legitimate claim of entitlement’’ to the benefit. ‘‘Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by

existing rules or understandings that stem from an independent

source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.’’ 196 Thus, in Roth, the Court held that the refusal to renew a

teacher’s contract upon expiration of his one-year term implicated

no due process values because there was nothing in the public university’s contract, regulations, or policies that ‘‘created any legitimate claim’’ to reemployment. 197 On the other hand, in Perry v.

Sindermann, 198 while there was no contract with a tenure provision nor any statutory assurance of it, the ‘‘existing rules or understandings’’ were deemed to provide a legitimate expectation independent of any contract provision, so that a professor employed for

several years at a public college, in which the actual practice had

the characteristics of tenure, had a protected interest. A statutory

assurance was found in Arnett v. Kennedy, 199 in which the civil

service laws and regulations made the continued employment subject to defeasance ‘‘only for such cause as would promote the efficiency of the service.’’ On the other hand, a policeman who was a

‘‘permanent employee’’ under an ordinance which appeared to afford him a continuing position subject to conditions subsequent was

held not to be protected by the due process clause because the federal district court had interpreted the ordinance as providing only
1728 AMENDMENT 14—RIGHTS GUARANTEED

200 Bishop v. Wood, 426 U.S. 341 (1976). ‘‘On its face,’’ the Court noted, ‘‘the ordinance on which [claimant relied] may fairly be read as conferring’’ both ‘‘a property interest in employment . . . [and] an enforceable expectation of continued public employment.’’ Id. at 344–45. The district court’s decision had been affirmed by

an equally divided appeals court and the Supreme Court deferred to the presumed

greater expertise of the lower court judges in reading the ordinance. Id. at 345. 201Goss v. Lopez, 419 U.S. 565 (1975). Cf. Carey v. Piphus, 435 U.S. 247 (1978)

(measure of damages for violation of procedural due process in school suspension

context). And see Board of Curators v. Horowitz, 435 U.S. 78 (1978) (whether liberty

or property interest implicated in academic dismissals and discipline, as contrasted

to disciplinary actions). 202Goss v. Lopez, 419 U.S. 565, 574 (1975). See also Barry v. Barchi, 443 U.S.

55 (1979) (horse trainer’s license); O’Bannon v. Town Court Nursing Center, 447

U.S. 773 (1980) (statutory entitlement of nursing home residents protecting them

in the enjoyment of assistance and care.) 203 Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985). Although the Court ‘‘assume[d] the existence of a constitutionally protectible property

interest in . . . continued enrollment’’ in a state university, this limited constitutional right is violated only by a showing that dismissal resulted from ‘‘such a substantial departure from accepted academic norms as to demonstrate that the person

or committee responsible did not actually exercise professional judgment.’’ 474 U.S.

at 225. 204 455 U.S. 422 (1982). A different majority of the Court also found an equal

protection denial. Id. at 438, 443.

employment at the will and pleasure of the city and the Supreme

Court chose not to disturb that interpretation. 200

Beyond employment the Court found ‘‘legitimate entitlements’’

in a variety of situations. Thus, because Ohio included within its

statutes a provision for free education to all residents between five

and 21 years of age and a compulsory-attendance at school requirement, the State was deemed to have obligated itself to accord students some due process hearing rights prior to suspending them,

even for such a short period as ten days. 201 ‘‘Having chosen to extend the right to an education to people of appellees’ class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred.’’ 202 The Court is highly deferential, however, to dismissal decisions based on academic grounds. 203

The most striking application of such due process analysis, to

date, is Logan v. Zimmerman Brush Co., 204 in which a state antidiscrimination law required the enforcing agency to convene a factfinding conference within 120 days of the filing of the complaint.

Inadvertently, the Commission scheduled the hearing after the expiration of the 120 days and the state courts held the requirement

to be jurisdictional, necessitating dismissal of the complaint. The

Court held that Logan had been denied due process. His cause of

action was a property interest; older cases had clearly established

causes of action as property and, in any event, Logan’s claim was

an entitlement grounded in state law and it could be removed only
AMENDMENT 14—RIGHTS GUARANTEED 1729

205 Id. at 428–33. 206Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978). 207 400 U.S. 433 (1971). 208 424 U.S. 693 (1976). 209The Court, id. at 701–10, distinguished Constantineau as being a ‘‘reputation-plus’’ case. That is, it involved not only the stigmatizing of one posted but it

also ‘‘deprived the individual of a right previously held under state law—the right

to purchase or obtain liquor in common with the rest of the citizenry.’’ Id. at 708.

How the state law positively did this the Court did not explain. But, of course, the

reputation-plus concept is now well-settled. Supra, p. 1727 n.197. And see Board of

Regents v. Roth, 408 U.S. 564, 573 (1972); Siegert v. Gilley, 500 U.S. 226 (1991). 210Paul 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).

‘‘for cause.’’ That property interest existed independently of the

120-day time period and could not simply be taken away by agency

action or inaction. 205 Beyond statutory entitlements, the Court has

looked to state decisional law to find that private utilities may not

terminate service at will but only for cause, for nonpayment of

charges, so that when there was a dispute about payment or the

accuracy of charges, due process required the utility to follow procedures to resolve the dispute prior to terminating service. 206

With respect to liberty, the Court has followed a somewhat

more meandering path, but it has arrived at the same place. In

Wisconsin v. Constantineau, 207 it invalidated a statutory scheme

by which a person, without any opportunity for a hearing and rebuttal, could be labeled an ‘‘excessive drinker’’ and barred from

places where alcohol was served; without discussing the source of

the entitlement, the Court noted that governmental action was

stigmatizing the individual’s reputation, honor, and integrity. But,

in Paul v. Davis, 208 the Court looked exclusively to positive statutory enactments to determine whether a liberty interest was entitled to protection. Davis involved official defamation of someone—

the police included plaintiff’s photograph and name on a list of ‘‘active shoplifters’’ circulated to merchants—but the Court held that

damage to reputation alone did not constitute a deprivation of any

interest that the due process clause protected. 209 ‘‘Kentucky law

does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners’ actions. Rather, his interest in reputation is simply one of a

number which the State may protect against injury by virtue of its

tort law, providing a forum for vindication of those interest by

means of damage actions.’’ 210

A number of liberty interest cases involve prisoner rights and

are dealt with in the section on criminal due process. But in terms

of the emphasis upon positive entitlements, it is useful to treat
1730 AMENDMENT 14—RIGHTS GUARANTEED

211 427 U.S. 215 (1976). See also Montanye v. Haymes, 427 U.S. 236 (1976). 212 445 U.S. 480 (1980). 213Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778

(1973). 214Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Connecticut Bd.

of Pardons v. Dumschat, 452 U.S. 458 (1981); Jago v. Van Curen, 454 U.S. 14

(1981). See also Wolff v. McDonnell, 418 U.S. 539 (1974) (due process applies to forfeiture of good-time credits and other positivist granted privileges of prisoners).

them briefly here. In Meachum v. Fano, 211 the Court held that a

state prisoner was not entitled to a factfinding hearing when he is

transferred to a different prison in which the conditions were substantially less favorable to him, because (1) the due process clause

liberty interest by itself is satisfied by the initial valid conviction

which had deprived him of liberty, and (2) no state law guaranteed

him the right to remain in the prison to which he was initially assigned, subject to transfer for cause of some sort. Under state law,

a prisoner could be transferred for any reason or for no reason, and

the due process clause did not mandate a different result. The decision of prison officials, therefore, was not dependent upon any state

of facts that would be found upon a hearing. But in Vitek v.

Jones, 212 a protected entitlement interest was found. The state

statute at issue permitted transfer of a prisoner to a state mental

hospital for treatment, but the transfer could be effectuated only

upon a finding, by a designated physician or psychologist, that the

prisoner ‘‘suffers from a mental disease or defect’’ and ‘‘cannot be

given treatment in that facility.’’ Because the transfer was conditioned upon a ‘‘cause,’’ the establishment of the facts necessary to

show the cause had to be done through fair procedures.

However, the Vitek Court also held that, independent of the

statutory entitlement, the prisoner had a ‘‘residuum of liberty’’ in

being free from the different confinement and from the stigma of

involuntary commitment for mental disease that the due process

clause protected. Thus, the Court has recognized, in this case and

in the cases involving revocation of parole or probation, 213 a liberty

interest that is separate from a positivist entitlement and that can

be taken away only through proper procedures. But with respect to

the possibility of parole or commutation or otherwise more rapid

release, no matter how much the expectancy matters to a prisoner,

in the absence of some form of positive entitlement, the prisoner

may be turned down without observance of procedures. 214 Summarizing its prior holdings, the Court recently concluded that two requirements must be present before a liberty interest is created in

the prison context: the statute or regulation must contain ‘‘substantive predicates’’ limiting the exercise of discretion, and there
AMENDMENT 14—RIGHTS GUARANTEED 1731

215Kentucky 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). 216 430 U.S. 651 (1977). 217 Id. at 673. The family-related liberties discussed under substantive due process, as well as the associational and privacy ones, no doubt provide a fertile source

of liberty interests for procedural protection. See Armstrong v. Manzo, 380 U.S. 545

(1965) (natural father, with visitation rights, must be given notice and opportunity

to be heard with respect to impending adoption proceedings); Stanley v. Illinois, 405

U.S. 645 (1972) (unwed father could not simply be presumed unfit to have custody

of his children because his interest in his children warrants deference and protection). See also Smith v. Organization of Foster Families, 431 U.S. 816 (1977); Little

v. Streater, 452 U.S. 1 (1981); Lassiter v. Department of Social Services, 452 U.S.

18 (1981); Santosky v. Kramer, 455 U.S. 745 (1982). 218 416 U.S. 134 (1974). 219 Id. at 155 (Justices Rehnquist and Stewart and Chief Justice Burger).

must be explicit ‘‘mandatory language’’ requiring a particular outcome if substantive predicates are found. 215

In Ingraham v. Wright, 216 the Court, unanimously, agreed

that freedom from wrongfully or excessively administered corporal

punishment was a liberty interest of school children protected by

the due process clause irrespective of positive state protection. ‘‘The

liberty preserved from deprivation without due process included

the right ‘generally to enjoy those privileges long recognized at

common law as essential to the orderly pursuit of happiness by free

men.’ . . . Among the historic liberties so protected was a right to

be free from, and to obtain judicial relief for, unjustified intrusions

on personal security.’’ 217

In Arnett v. Kennedy, 218 three Justices sought to qualify the

principle laid down in the entitlement cases and to restore in effect

much of the right-privilege distinction in a new formulation. Dealing with a federal law conferring upon employees the right not to

be discharged except for cause, the Justices acknowledged the prior

formulation that recognized that due process rights could be created through statutory grants of entitlements, but they went on to

observe that the same law withheld the procedural provisions now

contended for; in other words, ‘‘the property interest which appellee

had in his employment was itself conditioned by the procedural

limitations which had accompanied the grant of that interest.’’ 219

Congress (and state legislatures) could qualify the conferral of an

interest the due process clause might otherwise require.

But the other six Justices, while disagreeing among themselves

in other respects, rejected this attempt so to formulate the issue.

‘‘This view misconceives the origin of the right to procedural due

process,’’ Justice Powell wrote. ‘‘That right is conferred not by legislative grace but by constitutional guarantee. While the legislature
1732 AMENDMENT 14—RIGHTS GUARANTEED

220 Id. at 167 (Justices Powell and Blackmun concurring). See id. at 177 (Justice

White concurring and dissenting), 203 (Justice Douglas dissenting), 206 (Justices

Marshall, Douglas, and Brennan dissenting). 221 426 U.S. 341 (1976). A five-to-four decision, the opinion was written by Justice Stevens, replacing Justice Douglas, and was joined by Justice Powell, who had

disagreed with the theory in Arnett. See id. at 350, 353 n.4, 355 (dissenting opinions). The language is ambiguous and appears at different points to adopt both positions. But see id. at 345, 347. 222 419 U.S. 565, 573–74 (1975). See id. at 584, 586–87 (Justice Powell dissenting).223Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982) (quoting Vitek v.

Jones, 445 U.S. 480, 491 (1980)). 224Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S.

261, 265 (1912).

may elect not to confer a property interest in federal employment,

it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.’’ 220 Yet, in Bishop v. Wood, 221 the Court appeared to come

close to adopting the three-Justice Arnett position, the dissenters

accusing the majority of having repudiated the majority position in

Arnett, and in Goss v. Lopez, 222 while the opinion of the Court stated the expressed formulation of Justice Powell in Arnett, the Justice himself dissented, using language quite similar to the

Rehnquist Arnett language. More recently, however, first in a liberty interest case and then in a property interest case, the Court

has squarely held that because ‘‘‘minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the

fact that the State may have specified its own procedures that it

may deem adequate for determining the preconditions to adverse

action.’ . . . Indeed, any other conclusion would allow the State to

destroy at will virtually any state-created property interest.’’ 223

Substantive entitlements, therefore, may owe their existence to

positive enactment, but the procedural protections are found in the

judiciary’s reading of the due process clause.

Proceedings in Which Procedural Due Process Must Be

Observed.—While due notice and a reasonable opportunity to be

heard to present one’s claim or defense have been declared to be

two fundamental conditions almost universally prescribed in all

systems of law established by civilized countries, 224 there are certain proceedings appropriate for the determination of various rights

in which the enjoyment of these two conditions has not been

deemed to be constitutionally necessary. Thus, persons adversely

affected by a specific law cannot challenge its validity on the

ground that the legislative body or one of its committees gave no

notice of proposed legislation, held no hearings at which the person

could have presented his arguments, and gave no consideration to

particular points of view. ‘‘Where a rule of conduct applies to more
AMENDMENT 14—RIGHTS GUARANTEED 1733

225 Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445–

46 (1915). See also Bragg v. Weaver, 251 U.S. 57, 58 (1919). And cf. Logan v. Zimmerman Brush Co., 445 U.S. 422, 432–33 (1982). 226 United States v. Florida East Coast Ry., 410 U.S. 224 (1973). 227 Id. at 245 (distinguishing between rule-making, at which legislative facts are

in issue, and adjudication, at which adjudicative facts are at issue, requiring a hearing in latter proceedings but not in the former). See Londoner v. City of Denver,

210 U.S. 373 (1908). 228 Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 246–47 (1944).

than a few people it is impracticable that everyone should have a

direct voice in its adoption. The Constitution does not require all

public acts to be done in town meeting or an assembly of the whole.

General statutes within the state power are passed that affect the

person or property of individuals, sometimes to the point of ruin,

without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by

their power, immediate or remote, over those who make the

rule.’’ 225 Similarly, when an administrative agency engages in a

legislative function, as, for example, when in pursuance of statutory authorization it drafts regulations of general application affecting an unknown number of persons, it need not, any more than

does a legislative assembly, afford a hearing prior to promulgation. 226 On the other hand, if a regulation, sometimes denominated

an ‘‘order,’’ is of limited application, that is, affects the property or

interests of specific named or nameable individuals or an identifiable class of persons, the question whether notice and hearing is

required and, if so, whether it must precede such action becomes

a matter of greater urgency and must be determined by evaluation

of the factors discussed herein. 227

‘‘It is not an indispensable requirement of due process that

every procedure affecting the ownership or disposition of property

be exclusively by judicial proceeding. Statutory proceedings affecting property rights which, by later resort to the courts, secures to

adverse parties an opportunity to be heard, suitable to the occasion, do not deny due process.’’ 228 In one of the initial decisions

construing the due process clause (this of the Fifth Amendment),

the Court upheld the actions of the Secretary of the Treasury, acting pursuant to statute, to obtain from a collector of customs a substantial amount of money on which it was claimed he was in arrears. The Treasury simply issued a distress warrant and seized

the collector’s property, affording him no opportunity for a hearing,

and remitting him to suit (the statute waiving the immunity of the

United States) for recovery of his property upon proof that he had

not withheld funds from the Treasury. While acknowledging that

history and settled practice required proceedings in which pleas,
1734 AMENDMENT 14—RIGHTS GUARANTEED

229Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.)

272 (1856).

230 Coffin Brothers & Co. v. Bennett, 277 U.S. 29 (1928).

231Postal 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).

232Lindsey v. Normet, 405 U.S. 56, 65–69 (1972). However, if one would suffer

too severe an injury between the doing and the undoing, he may avoid the alternative means. Stanley v. Illinois, 405 U.S. 645, 647 (1972).

233 American Surety Co. v. Baldwin, 287 U.S. 156 (1932). Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 429–30, 432–33 (1982).

answers, and trials were requisite before property could be taken,

the Court observed that the distress collection of debts due the

crown had been the exception to the rule in England and was of

long usage in the United States, and was thus sustainable. 229 In

more modern times, the Court upheld a procedure under which a

state banking superintendent, after having taken over a closed

bank and issued notices to stockholders of their assessment, could

issue execution for the amounts due, subject to the right of each

stockholder, by affidavit of illegality, to contest his liability for such

an assessment. The fact that the execution was issued in the first

instance by a governmental officer and not from a court, followed

by personal notice and a right to take the case into court, was seen

as unobjectionable. 230

A State may not, consistent with the due process clause, enforce a judgment against a party named in the proceeding without

having given him an opportunity to be heard sometime before final

judgment is entered. 231 With regard to the presentation of every

available defense, however, the requirements of due process do not

necessarily entail affording an opportunity to do so before entry of

judgment. The person may be remitted to other actions initiated by

him 232 or an appeal may suffice. Accordingly, a surety company,

objecting to the entry of a judgment against it on a supersedeas

bond, without notice and an opportunity to be heard on the issue

of liability, was not denied due process where the state practice

provided the opportunity for such a hearing by an appeal from the

judgment so entered. Nor could the company found its claim of denial of due process upon the fact that it lost this opportunity for

a hearing by inadvertently pursuing the wrong procedure in the

state courts. 233 On the other hand, where a state appellate court

reversed a trial court and entered a final judgment for the defendant, a plaintiff who had never had an opportunity to introduce evidence in rebuttal to certain testimony which the trial court deemed

immaterial but which the appellate court considered material was
AMENDMENT 14—RIGHTS GUARANTEED 1735

234Saunders v. Shaw, 244 U.S. 317 (1917). 235Goldberg v. Kelly, 397 U.S. 254, 262–63 (1970), (quoting Joint Anti-Fascist

Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Justice Frankfurter concurring)). 236 Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 894–95

(1961). 237 424 U.S. 319, 335 (1976). 238 397 U.S. 254, 264 (1970). 239Mathews v. Eldridge, 424 U.S. 319, 339–49 (1976).

held to have been deprived of his rights without due process of

law. 234

When Is Process Due.—‘‘The extent to which procedural due

process must be afforded the recipient is influenced by the extent

to which he may be ‘condemned to suffer grievous loss,’ . . . and depends upon whether the recipient’s interest in avoiding that loss

outweighs the governmental interest in summary adjudication.’’ 235

‘‘The very nature of due process negates any concept of inflexible

procedures universally applicable to every imaginable situation.’’ 236

Due process application, as has been noted, depends upon the nature of the interest; the form of the due process to be applied is determined by the weight of that interest balanced against the opposing interests. The currently prevailing standard is that formulated

in Mathews v. Eldridge. 237 ‘‘[I]dentification of the specific dictates

of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official

action; second, the risk of erroneous deprivation of such interest

through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural

requirements would entail.’’

Whereas, in Goldberg v. Kelly, 238 the effect of termination of

welfare benefits could be ‘‘devastating,’’ a matter of loss of food and

shelter, thus mandating a pre-deprivation hearing, the termination

of Social Security benefits would be considerably different, inasmuch as they are not based on financial need and a terminated recipient would be able to apply for welfare if need be. Moreover, the

determination of ineligibility for Social Security benefits more often

turns upon routine and uncomplicated evaluations of data, reducing the likelihood of error, a likelihood found significant in Goldberg. Finally, the administrative burden and other societal costs involved in giving Social Security recipients a pre-termination hearing would be high. Therefore, a post-termination hearing, with full

retroactive restoration of benefits, if the claimant prevails, was

found satisfactory. 239
1736 AMENDMENT 14—RIGHTS GUARANTEED

240Mitchell 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.

241 395 U.S. 337 (1969). 242 North Georgia Finishing v. Di-Chem, 419 U.S. 601, 611 n.2 (1975) (Justice

Powell concurring). The majority opinion draws no such express distinction, see id.

at 605–06, rather emphasizing that Sniadach-Fuentes do require observance of some

due process procedural guarantees. But see Mitchell v. W.T. Grant Co., 416 U.S.

600, 614 (1974) (opinion of the Court by Justice White emphasizing the wages aspect of the earlier case). 243Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); North Georgia Finishing v.

Di-Chem, 419 U.S. 601 (1975). Fuentes was a decision of uncertain viability from

the beginning, inasmuch as it was four-to-three; argument had been heard prior to

the date Justices Powell and Rehnquist joined the Court, hence neither participated

in the decision. See Di-Chem, supra, 616–19 (Justice Blackmun dissenting); Mitchell,

supra, 635–36 (Justice Stewart dissenting).

Application of the standard and other considerations brought

some noteworthy changes to the process accorded debtors and installment buyers. For example, the previous cases had focused

upon the interests of the holders of the property in not being unjustly deprived of the goods and funds in their possession, in requiring pre-deprivation hearings. The newer cases looked to the interests of creditors as well. ‘‘The reality is that both seller and

buyer had current, real interests in the property, and the definition

of property rights is a matter of state law. Resolution of the due

process question must take account not only of the interests of the

buyer of the property but those of the seller as well.’’ 240

Thus, Sniadach v. Family Finance Corp., 241 mandating a predeprivation hearing before wages may be garnished, is apparently

to be limited to instances when wages, and perhaps certain other

basic necessities, are in issue and the consequences of deprivation

would be severe. 242 Fuentes, which extended the Sniadach principle to all ‘‘significant property interests’’ and thus mandated predeprivation hearings, has been limited, so that when government

provides certain procedural protections in structuring the ex parte

judicial determinations that seizure should take place and provides

for a prompt and adequate post-deprivation (but pre-judgment)

hearing, the due process clause is satisfied. 243 To be valid, laws authorizing sequestration, garnishment, or other seizure of property

of an alleged defaulting debtor must require that (1) the creditor

furnish adequate security to protect the debtor’s interest, (2) the

creditor make a specific factual showing before a neutral officer or

magistrate, not a clerk or other such functionary, of probable cause

to believe that he is entitled to the relief requested, and (3) an op-
AMENDMENT 14—RIGHTS GUARANTEED 1737

244Mitchell v. W.T. Grant Co., 416 U.S. 600, 615–18 (1974), and id. at 623 (Justice Powell concurring). And see Arnett v. Kennedy, 416 U.S. 134, 188 (1974) (Justice White concurring in part and dissenting in part). More recently, the Court has

applied a variant of the Mathews v. Eldridge formula in holding that Connecticut’s

prejudgment attachment statute, which ‘‘fail[ed] to provide a preattachment hearing

without at least requiring a showing of some exigent circumstance,’’ operated to

deny equal protection. Connecticut v. Doehr, 501 U.S. 1, 18 (1991). ‘‘[T]he relevant

inquiry requires, as in Mathews, first, consideration of the private interest that will

be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of

additional or alternative safeguards; and third, in contrast to Mathews, principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing

the procedure or forgoing the added burden of providing greater protections.’’ Id. at

11. 245 Compare Flagg Brothers v. Brooks, 436 U.S. 149 (1978) (no state action in

warehouseman’s sale of goods for nonpayment of storage, as authorized by state

law), with Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (state officials’ joint

participation with private party in effecting prejudgment attachment of property);

and Tulsa Professional Collection Servs. v. Pope, 485 U.S. 478 (1988) (probate court

was sufficiently involved with actions activating time bar in ‘‘nonclaim’’ statute). 246 Arnett v. Kennedy, 416 U.S. 134, 170–71 (1974) (Justice Powell concurring),

and id. at 195–96 (Justice White concurring in part and dissenting in part); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (discharge of state government

employee). In Barry v. Barchi, 443 U.S. 55 (1979), the Court held that the state interest in assuring the integrity of horse racing carried on under its auspices justified

an interim suspension without a hearing once it established the existence of certain

facts, provided that a prompt judicial or administrative hearing would follow suspension at which the issues could be determined was assured. FDIC v. Mallen, 486

U.S. 230 (1988) (strong public interest in the integrity of the banking industry justifies suspension of indicted bank official with no pre-suspension hearing, and with

90-day delay before decision resulting from post-suspension hearing).

portunity be assured for an adversary hearing promptly after seizure to determine the merits of the controversy, with the burden

of proof on the creditor. 244 Efforts to litigate challenges to seizures

in actions involving two private parties can be thwarted by findings

of ‘‘no state action,’’ but there often is sufficient participation by

state officials to constitute state action and implicate due process. 245

Similarly, applying the tripartite test of Mathews v. Eldridge

in the context of government employment, the Court has held, albeit by a combination of divergent opinions, that the interest of the

employee in retaining his job, the governmental interest in the expeditious removal of unsatisfactory employees and the avoidance of

administrative burdens, and the risk of an erroneous termination

require the provision of some minimum pre-termination notice and

opportunity to respond, although there need not be a formal adversary hearing, followed by a full post-termination hearing, complete

with all the procedures normally accorded and back pay if the employee is successful. 246 In other cases, hearings of even minimum

procedures have been dispensed with when what is to be estab-
1738 AMENDMENT 14—RIGHTS GUARANTEED

247 E.g., Dixon v. Love, 431 U.S. 105 (1977) (when suspension of drivers’ license

is automatic upon conviction of a certain number of offenses, no hearing is required

because there can be no dispute about facts). 248Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). 249 481 U.S. 252 (1987). Justice Marshall’s plurality opinion was joined by Justices Blackmun, Powell, and O’Connor; Chief Justice Rehnquist and Justice Scalia

joined Justice White’s opinion taking a somewhat narrower view of due process requirements but supporting the plurality’s general approach. Justices Brennan and

Stevens would have required confrontation and cross-examination. 250For 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.

lished is so pro forma or routine that the likelihood of error is very

small. 247 In the case dealing with the negligent state failure to observe a procedural deadline, the Court held that the claimant was

entitled to a hearing with the agency to pass upon the merits of

his claim prior to dismissal of his action. 248

In Brock v. Roadway Express, Inc., a Court plurality applied

similar analysis to governmental regulation of private employment,

determining that a full evidentiary hearing is not required to safeguard the interests of an employer prior to the ordered reinstatement of an employee dismissed for cause, but that the employer is

entitled to be informed of the substance of the employee’s charges,

and to have an opportunity for informal rebuttal. 249 The principal

difference with the Mathews v. Eldridge test was that here the

Court acknowledged two conflicting private interests to weigh in

the equation: that of the employer ‘‘in controlling the makeup of its

workforce’’ and that of the employee in not being discharged for

whistleblowing. Whether the case signals a shift away from evidentiary hearing requirements in the context of regulatory adjudication will depend on future developments. 250

In another respect, the balancing standard has resulted in an

alteration of previously existing law, requiring neither a pre- nor

post-termination hearing in some instances when the State affords

the claimant an alternative remedy, such as a judicial action for

damages. Thus, passing on the infliction of corporal punishment in

the public schools, a practice which implicated protected liberty interests, the Court held that the existence of common-law tort remedies for wrongful or excessive administration of punishment, plus

the context in which it was administered (i.e., the ability of the

teacher to observe directly the infraction in question, the openness

of the school environment, the visibility of the confrontation to

other students and faculty, and the likelihood of parental reaction

to unreasonableness in punishment), made reasonably assured the

probability that a child would be not punished without cause or excessively. The Court did not inquire about the availability of judi-
AMENDMENT 14—RIGHTS GUARANTEED 1739

251 Ingraham v. Wright, 430 U.S. 651, 680–82 (1977). In Memphis Light, Gas

& Water Div. v. Craft, 436 U.S. 1, 19–22 (1987), involving cutoff of utility service

for non-payment of bills, the Court rejected the argument that common-law remedies were sufficient to obviate the pre-termination hearing requirement. 252 451 U.S. 527 (1981). 253 Id. at 541, 543–44. 254Daniels v. Williams, 474 U.S. 327, 328 (1986) (involving negligent acts by

prison officials). 255 455 U.S. 422, 435–36 (1982). The Court also emphasized that a post-deprivation hearing in the context of this case would be inadequate. ‘‘That is particularly

true where, as here, the State’s only post-termination process comes in the form of

an independent tort action. Seeking redress through a tort suit is apt to be a

lengthy and speculative process, which in a situation such as this one will never

make the complainant entirely whole.’’ Id. at 436–37. 256Parratt was a property loss case and while Ingraham was a liberty case the

holding there was not that, standing alone, a tort remedy was an adequate process.

It is not clear, therefore, that a tort remedy could ever be an adequate substitute

for some kind of hearing in a liberty loss situation.

cial remedies for such violation in the State in which the case

arose. 251

More expressly adopting the tort remedy theory, the Court in

Parratt v. Taylor 252 held that the loss of a prisoner’s mail-ordered

goods through the negligence of prison officials constituted a deprivation of property, but that the State’s post-deprivation tort-claims

procedure afforded adequate due process. When a state officer or

employee acts negligently, the Court recognized, there is no way

that the State can provide a pre-termination hearing; the real

question, therefore, is what kind of post-deprivation hearing is sufficient. When the action complained of is the result of the unauthorized failure of agents to follow established procedures and

there is no contention that the procedures themselves are inadequate, the due process clause is satisfied by the provision of a judicial remedy which the claimant must initiate. 253 Five years later,

however, the Court overruled Parratt, holding that ‘‘the Due Process Clause is simply not implicated by a negligent act of an official

causing unintended loss of or injury to life, liberty, or property.’’ 254

Hence, there is no requirement for procedural due process stemming from such negligent acts and no resulting basis for suit under

42 U.S.C. § 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.

In Logan v. Zimmerman Brush Co., 255 the Court had distinguished between property 256 deprivations resulting from random

and unauthorized acts of state employees and those resulting from

operation of established state procedures, and presumably this distinction still holds. Post deprivation procedures would not satisfy
1740 AMENDMENT 14—RIGHTS GUARANTEED

257 Board of Regents v. Roth, 408 U.S. 564, 570 n.7 (1972); Bell v. Burson, 402

U.S. 535, 542 (1971). See Parratt v. Taylor, 451 U.S. 527, 538–40 (1981). 258 North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908);

Ewing v. Mytinger & Casselberry, 339 U.S. 594 (1950). See also Fahey v. Mallonee,

332 U.S. 245 (1948). Cf. Mackey v. Montrym, 443 U.S. 1, 17–18 (1979). 259Phillips v. Commissioner, 283 U.S. 589, 597 (1931). 260 Central Union Trust Co. v. Garvan, 254 U.S. 554, 566 (1921). See also

Bowles v. Willingham, 321 U.S. 503 (1944). 261 Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961). 262 Id. at 894, 895, 896. 263 Id. at 896–98. See Goldberg v. Kelly, 397 U.S. 254, 263 n.10 (1970); Board

of Regents v. Roth, 408 U.S. 564, 575 (1972); Arnett v. Kennedy, 416 U.S. 134, 152

(1974) (plurality opinion), and id. at 181–83 (Justice White concurring in part and

dissenting in part). 264D.H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972). See also Fuentes v.

Shevin, 407 U.S. 67, 94–96 (1972). 265Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313 (1950). 266Mathews v. Eldridge, 424 U.S. 319, 344 (1976).

due process deprivations if it is ‘‘the state system itself that destroys a complainant’s property interest.’’

In ‘‘rare and extraordinary situations,’’ 257 where summary action is necessary to prevent imminent harm to the public, and the

private interest infringed is reasonably deemed to be of less importance, government can take action with no notice and no opportunity to defend, subject to a full later hearing. Examples are seizure of contaminated foods or drugs or other such commodities to

protect the consumer. 258 Other possibilities are the collection of

governmental revenues 259 and the seizure of enemy property in

wartime. 260 Citing national security interests, the Court upheld an

order, issued without notice and an opportunity to be heard, excluding a short-order cook employed by a concessionaire from a

Naval Gun Factory, but the basis of the five-to-four decision is unclear. 261 On the one hand, the Court was ambivalent about a rightprivilege distinction; 262 on the other hand, it contrasted the limited

interest of the cook—barred from the base, she was still free to

work at a number of the concessionaire’s other premises—with the

Government’s interest in conducting a high-security program. 263

Finally, one may waive his due process rights, though as with

other constitutional rights the waiver must be knowing and voluntary. 264

The Requirements of Due Process.—Bearing in mind that

due process tolerates variances in form ‘‘appropriate to the nature

of the case,’’ 265 it is nonetheless possible to indicate generally the

basic requirements. ‘‘[P]rocedural due process rules are shaped by

the risk of error inherent in the truth-finding process as applied to

the generality of cases.’’ 266 ‘‘Procedural due process rules are

meant to protect persons not from the deprivation, but from the
AMENDMENT 14—RIGHTS GUARANTEED 1741

267 Carey v. Piphus, 435 U.S. 247, 259 (1978). 268Fuentes 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). 269Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950). 270Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970). 271 Armstrong v. Manzo, 380 U.S. 545, 550 (1965); Robinson v. Hanrahan, 409

U.S. 38 (1974); Greene v. Lindsey, 456 U.S. 444 (1982). 272Mathews v. Eldridge, 424 U.S. 319, 333 (1976). 273 Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863). 274 Armstrong v. Manzo, 380 U.S. 545, 552 (1965). 275Fuentes 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).276Goldberg v. Kelly, 397 U.S. 254 (1970); Sniadach v. Family Finance Corp.,

395 U.S. 337 (1969).

mistaken or unjustified deprivation of life, liberty, or property.’’ 267

The rules ‘‘minimize substantively unfair or mistaken deprivations’’

by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests. 268 Thus, after the determination of the existence of a protected interest at issue, it must

still be determined what procedure is adequate.

(1) Notice. ‘‘An elementary and fundamental requirement of

due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them an

opportunity to present their objections.’’ 269 The notice must be sufficient to enable the recipient to determine what is being proposed

and what he must do to prevent the deprivation of his interest. 270

Ordinarily, service of the notice must be reasonably structured to

assure that the person to whom it is directed receives it. 271

(2) Hearing. ‘‘[S]ome form of hearing is required before an individual is finally deprived of a property [or liberty] interest.’’ 272

‘‘Parties whose rights are to be affected are entitled to be

heard.’’ 273 The notice of hearing and the opportunity to be heard

‘‘must be granted at a meaningful time and in a meaningful manner.’’ 274 ‘‘The constitutional right to be heard is a basic aspect of

the duty of government to follow a fair process of decision making

when it acts to deprive a person of his possessions. The purpose of

this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment. . . .’’ 275 The

Court has in recent years developed a complex calculus to determine whether a hearing should precede the deprivation or whether

a prompt post-deprivation hearing would be adequate. Generally,

where the loss, even temporarily, would be severe or catastrophic,

the hearing must come first; 276 where a temporary deprivation
1742 AMENDMENT 14—RIGHTS GUARANTEED

277 Arnett v. Kennedy, 416 U.S. 134 (1974); Mathews v. Eldridge, 424 U.S. 319

(1976); Barry v. Barchi, 443 U.S. 55 (1979). 278 Id. at 66. 279Mathews v. Eldridge, 424 U.S. 319, 343–45 (1976); Mitchell v. W.T. Grant

Co., 416 U.S. 600 (1974); Mackey v. Montrym, 443 U.S. 1, 13–17 (1979); Barry v.

Barchi, 443 U.S. 55, 65–66 (1979). 280Goldberg v. Kelly, 397 U.S. 254 (1970). 281Goss v. Lopez, 419 U.S. 565 (1975) (temporary suspension of student from

school). See also Board of Curators v. Horowitz, 435 U.S. 78 (1978). 282 Coe v. Armour Fertilizer Works, 237 U.S. 413, 424 (1915). 283Goldberg v. Kelly, 397 U.S. 254, 266–67 (1970); Mathews v. Eldridge, 424

U.S. 319, 343–45 (1976). See also FCC v. WJR, 337 U.S. 265, 275–77 (1949). 284Tumey v. Ohio, 273 U.S. 510 (1927); In re Murchison, 349 U.S. 133 (1955). 285Goldberg v. Kelly, 397 U.S. 254, 271 (1970). 286Marshall v. Jerrico, 446 U.S. 238, 242 (1980); Schweiker v. McClure, 456

U.S. 188, 195 (1982). 287Wong Yang Sung v. McGrath, 339 U.S. 33 (1950).

would be less severe and the opposing interest is important, the

hearing may come later, 277 so long as it is promptly assured. 278

Too, the nature of what must be shown will be taken into account.

Where the showing to be established is largely formal or subject to

substantial documentary evidence, a post-termination hearing may

suffice, 279 while in cases in which the evidence is largely subjective

and dependent upon the personal appearance of the claimant the

hearing must ordinarily precede the loss and the circumstance may

require a more highly structured proceeding. 280 Sometimes, because of the nature of the opposing interest and the circumstances

of the determination, the hearing need involve only minimal formality. 281 The hearing requirement does not depend upon an advance showing that the claimant will prevail at such a hearing. 282

While written presentations may be acceptable in some situations,

in others the issue of veracity may necessitate oral presentation or

oral examination of witnesses, or the petitioner may not have the

ability to present his case in writing. 283

(3) Impartial Tribunal. Just as in criminal and quasi-criminal

cases, 284 ‘‘an impartial decision maker’’ is an ‘‘essential’’ right in

civil proceedings as well. 285 ‘‘The neutrality requirement helps to

guarantee that life, liberty, or property will not be taken on the

basis of an erroneous or distorted conception of the facts or the law.

. . . At the same time, it preserves both the appearance and reality

of fairness . . . by ensuring that no person will be deprived of his

interests in the absence of a proceeding in which he may present

his case with assurance that the arbiter is not predisposed to find

against him.’’ 286 Thus, the conduct of deportation hearings by a

person who, while he had not investigated the case heard, was also

an investigator who must judge the results of others’ investigations

just as one of them would some day judge his, raised a substantial

problem which was resolved through statutory construction. 287 But
AMENDMENT 14—RIGHTS GUARANTEED 1743

288Schweiker 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). 289Withrow v. Larkin, 421 U.S. 35 (1975). 290 Id. at 51. 291Gibson v. Berryhill, 411 U.S. 564 (1973). 292 Hortonville Joint School Dist. v. Hortonville Educ. Ass’n, 426 U.S. 482

(1976). Compare Arnett v. Kennedy, 416 U.S. 134, 170 n.5 (1974) (Justice Powell),

with id. at 196–99 (Justice White), and 216 (Justice Marshall).

293Marshall 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. 294Goldberg v. Kelly, 397 U.S. 254, 269 (1970). See also ICC v. Louisville &

Nashville R.R., 227 U.S. 88, 93–94 (1913); Willner v. Committee on Character, 373

U.S. 96, 103–04 (1963). Cf. § 7(c) of the Administrative Procedure Act, 5 U.S.C.

§ 556(d).

there is a ‘‘presumption of honesty and integrity in those serving

as adjudicators,’’ 288 so that the burden is on the objecting party to

show a conflict of interest or some other specific reason for disqualification of a specific officer or for disapproval of the system.

It is not, without more, a violation of due process to combine investigating and adjudicating functions in the same agency, 289 although the question of combination of functions is a substantial one

in administrative law. 290 A showing of bias or of strong implications of bias was deemed made in a case in which the state optometry board, which was made up only of private practitioners, was

proceeding against other licensed optometrists for unprofessional

conduct, because they were employed by corporations. Since success

in the board’s effort would redound to the personal benefit of private practitioners, the Court thought the interest of the board

members to be sufficient to disqualify them. 291 However, the Court

held that school board members did not have such an official or

personal stake in the decision as to disqualify them from making

the decision whether to fire teachers who had engaged in a strike

against the school system in violation of state law. 292 A lesser

standard of impartiality applies to an administrative officer who

acts in a prosecutorial role. 293

(4) Confrontation and Cross-Examination. ‘‘In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse

witnesses.’’ 294 Where the ‘‘evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be

perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealously,’’ the individual’s right to show that it

is untrue depends on the rights of confrontation and cross-examination. ‘‘This Court has been zealous to protect these rights from ero-
1744 AMENDMENT 14—RIGHTS GUARANTEED

295Greene 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). 296Greene v. McElroy, 360 U.S. 474, 496 (1959), quoted with approval in Goldberg v. Kelly, 397 U.S. 254, 270 (1970). 297 Recommendations and Reports of the Administrative Conference of the United States 571 (1968–1970). 298FMC v. Anglo-Canadian Shipping Co., 335 F.2d 255 (9th Cir. 1964);

Fairbank v. Hardin, 429 F.2d 264, 268 (9th Cir.), cert. denied, 400 U.S. 943 (1970). 299Goldberg v. Kelly, 397 U.S. 254, 271 (1970). The exclusiveness of the record

is fundamental in administrative law. See 7(d) of the Administrative Procedure Act,

5 U.S.C. § 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). 300 397 U.S. 254, 270–71 (1970).

sion. It has spoken out not only in criminal cases, . . . but also in

all types of cases where administrative . . . actions were under

scrutiny.’’ 295

(5) Discovery. The Court has never directly confronted this

issue, but in one case it did observe in dictum. ‘‘[W]here governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to

prove the Government’s case must be disclosed to the individual so

that he has an opportunity to show that it is untrue.’’ 296 Some federal agencies have adopted discovery rules modeled on the Federal

Rules of Civil Procedure, and the Administrative Conference has

recommended that all do so. 297 There appear to be no cases, however, holding they must, and there is some authority that they cannot absent congressional authorization. 298

(6) Decision on the Record. [T]he decisionmaker’s conclusion as

to a recipients’ eligibility must rest solely on the legal rules and

evidence adduced at the hearing. . . . To demonstrate compliance

with this elementary requirement, the decisionmaker should state

the reasons for his determination and indicate the evidence he relied on . . . though his statement need not amount to a full opinion

or even formal findings of fact and conclusions of law.’’ 299

(7) Counsel. In Goldberg v. Kelly, 300 the Court held that an

agency must permit the recipient to be represented by and assisted

by counsel. It did not, however, decide that the agency must provide counsel for one unable to afford his own and did not decide

that the agency need not do so. In the years since, the right of civil

litigants in court and persons before agencies who could not afford

retained counsel has excited much controversy, and while quite recently the Court has applied its balancing standard to require a

case-by-case determination with respect to the right to appointed
AMENDMENT 14—RIGHTS GUARANTEED 1745

301Lassiter v. Department of Social Services, 452 U.S. 18 (1981). The decision

was a five-to-four one, Justices Stewart, White, Powell, and Rehnquist and Chief

Justice Burger in the majority, Justices Blackmun, Brennan, Marshall, and Stevens

in dissent. Id. at 35, 59. 302 Id. at 25–27. The Court purported to draw the distinction from Gagnon v.

Scarpelli, 411 U.S. 778 (1973) (no per se right to counsel in probation revocation proceedings). To introduce this presumption into the balancing, however, appears to

disregard the fact that the first factor of Mathews v. Eldridge, upon which the Court

(and dissent) relied, relates to the importance of the interest to the person claiming

the right, thus, at least in this context, reducing the value of the first Eldridge factor. 303 Id. at 452 U.S., 31–32. The Mathews v. Eldridge standards were drafted in

the context of the generality of cases and were not intended for case-by-case application Cf. 424 U.S. 319, 344 (1976). 304 E.g., Little v. Streater, 452 U.S. 1 (1981) (indigent entitled to state-funded

blood testing in a paternity action the State required to be instituted); Santosky v.

Kramer, 455 U.S. 745 (1982) (imposition of higher standard of proof in case involving state termination of parental rights).

counsel, the matter seems far from settled. In a case involving a

state proceeding to terminate the parental rights of an indigent

without providing her counsel, the Court recognized as ‘‘an extremely important one’’ the parent’s interest, but observed that the

State’s interest in protecting the welfare of children was likewise

very important. The interest in correct factfinding was strong on

both sides, but, the Court thought, the proceeding was relatively

simple, no features were present raising a risk of criminal liability,

no expert witnesses were present, and no ‘‘specially troublesome’’

substantive or procedural issues had been raised. 301 But what

tipped the scale in the Court’s decision not to require counsel in

this case was the ‘‘pre-eminent generalization it drew from its

precedents that an indigent has an absolute right to appointed

counsel only where he may lose his physical liberty if he loses the

litigation. 302 Thus, in all other situations when liberty or property

interests are present, the right of an indigent to appointed counsel

is to be determined on a case-by-case basis, initially by the trial

judge, subject to appellate review. 303 In other due process cases involving parental rights, the Court has held that due process requires special state attention to parental rights, 304 and it is to be

supposed that the counsel issue will recur.

PROCEDURAL DUE PROCESS—CRIMINAL

Generally

The Supreme Court’s guardianship of state criminal justice

systems under the due process clause has never been subject to

precise statement of metes and bounds. Rather, the Court in each

case must ask whether the challenged practice or policy violates ‘‘a

fundamental principle of liberty and justice which inheres in the
1746 AMENDMENT 14—RIGHTS GUARANTEED

1Twining v. New Jersey, 211 U.S. 78, 106 (1908).

2Palko v. Connecticut, 302 U.S. 319, 325 (1937).

3 Rochin v. California, 342 U.S. 165, 169 (1952).

4Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968).

5Supra, pp. 957–64.

6 Justice Black thought the Fourteenth Amendment should be limited in this regard to the specific guarantees found elsewhere in the Bill of Rights. See, e.g., In

re Winship, 397 U.S. 358, 377 (1970) (dissenting). For Justice Harlan’s response, see

id. at 372 n.5 (concurring). 7 In re Winship, 397 U.S. 358 (1970), held that, despite the absence of a specific

constitutional provision requiring proof beyond a reasonable doubt in criminal cases,

such proof is a due process requirement. For other recurrences to general due process reasoning, as distinct from reliance on more specific Bill of Rights provisions,

very idea of a free government and is the inalienable right of a citizen of such government.’’ 1 The question is whether a claimed right

is ‘‘implicit in the concept of ordered liberty,’’ whether it partakes

‘‘of the very essence of a scheme of ordered liberty.’’ 2 Inevitably,

judgment expresses a determination that certain practices do or do

not ‘‘offend those canons of decency and fairness which express the

notions of justice of English-speaking peoples even toward those

charged with the most heinous offenses.’’ 3 More recently, the Court

has eschewed as too abstract an inquiry as to whether some procedural safeguard was necessary before a system could be imagined

which would be regarded as civilized without that safeguard. Rather, ‘‘[t]he recent cases . . . have proceeded upon the valid assumption that state criminal processes are not imaginary and theoretical

schemes but actual systems bearing virtually every characteristic

of the common-law system that has been developing contemporaneously in England and in this country. The question thus is

whether given this kind of system a particular procedure is fundamental—whether, that is, a procedure is necessary to an AngloAmerican regime of ordered liberty. . . . [Therefore the limitations

imposed by the Court on the States are] not necessarily fundamental to fairness in every criminal system that might be imagined but

[are] fundamental in the context of the criminal processes maintained by the American States.’’ 4

Applying this analysis the Court in recent years has held that

practically all the criminal procedural guarantees of the Bill of

Rights—the Fourth, Fifth, Sixth, and Eighth Amendments—contain limitations which are fundamental to state criminal justice

systems and that the absence of one or the other particular guarantees denies a suspect or a defendant due process of law. 5 However,

the due process clause of the Fourteenth Amendment is not limited

to those specific guarantees spelled out in the Bill of Rights, 6 but

rather contains protection against practices and policies which may

fall short of fundamental fairness without running afoul of a specific provision. 7
AMENDMENT 14—RIGHTS GUARANTEED 1747

see, e.g., Chambers v. Mississippi, 410 U.S. 284 (1973); Wardius v. Oregon, 412 U.S.

470 (1973); Mullaney v. Wilbur, 421 U.S. 684 (1975); Estelle v. Williams, 425 U.S.

501 (1976); Henderson v. Kibbe, 431 U.S. 145 (1977); Patterson v. New York, 432

U.S. 197 (1977); Taylor v. Kentucky, 436 U.S. 478 (1978); Kentucky v. Whorton, 441

U.S. 786 (1979); Sandstrom v. Montana, 442 U.S. 510 (1979); Hicks v. Oklahoma,

447 U.S. 343 (1980). 8Musser v. Utah, 333 U.S. 95, 97 (1948). ‘‘Vague laws offend several important

values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague

laws may trap the innocent by not providing fair warnings. Second, if arbitrary and

discriminatory enforcement is to be prevented, laws must provide explicit standards

for those who apply them. A vague law impermissibly delegates basic policy matters

to policemen, judges, and juries for resolution on an ad hoc and subjective basis,

with the attendant dangers of arbitrary and discriminatory applications.’’ Grayned

v. City of Rockford, 408 U.S. 104, 108–09 (1972), quoted in Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 498 (1982). 9 Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).

10Winters v. New York, 333 U.S. 507, 515–16 (1948). Cf. Colten v. Kentucky,

407 U.S. 104, 110 (1972). 11Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Smith v. Goguen,

415 U.S. 566 (1974). 12Palmer v. City of Euclid, 402 U.S. 544 (1971); Village of Hoffman Estates v.

The Flipside, 455 U.S. 489, 494–95 (1982). 13Winters v. New York, 333 U.S. 507, 509–10 (1948); Thornhill v. Alabama, 310

U.S. 88 (1940). 14 E.g., United States v. National Dairy Corp., 372 U.S. 29 (1963).

The Elements of Due Process

Clarity in Criminal Statutes: The Void-for-Vagueness

Doctrine.—‘‘Legislation may run afoul of the Due Process Clause

because it fails to give adequate guidance to those who would be

law-abiding, to advise defendants of the nature of the offense with

which they are charged, or to guide courts in trying those who are

accused.’’ 8 Acts which are made criminal ‘‘must be defined with appropriate definiteness.’’ 9 ‘‘There must be ascertainable standards of

guilt. Men of common intelligence cannot be required to guess at

the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act . . . or in

regard to the applicable tests to ascertain guilt.’’ 10 Statutes which

lack the requisite definiteness or specificity are commonly held

‘‘void for vagueness.’’ Such a statute may be pronounced wholly unconstitutional (unconstitutional ‘‘on its face’’), 11 or, if the statute

could be applied to both prohibitable and to protected conduct and

its valuable effects outweigh its potential general harm, it could be

held unconstitutional as applied. 12 Generally, a vague statute that

regulates in the area of First Amendment guarantees will be pronounced wholly void, 13 while one that does not reach such protected conduct will either be upheld because it is applied to clearly

proscribable conduct, or voided as applied when the conduct is marginal and the proscription is unclear. 14
1748 AMENDMENT 14—RIGHTS GUARANTEED

15Lanzetta v. New Jersey, 306 U.S. 451 (1939); Edelman v. California, 344 U.S.

357 (1953). 16 E.g., Winters v. New York, 333 U.S. 507, 540 (1948) (Justice Frankfurter dissenting); Edelman v. California, 344 U.S. 357, 362 (1953) (Justice Black dissenting);

Hicks v. District of Columbia, 383 U.S. 252 (1966) (Justice Douglas dissenting). 17 405 U.S. 156 (1972). 18 Coates v. City of Cincinnati, 402 U.S. 611 (1971). See also Shuttlesworth v.

City of Birmingham, 382 U.S. 87 (1965). Bouie v. City of Columbia, 378 U.S. 347

(1964), voided conviction on trespass charges arising out of a sit-in at a drugstore

lunch counter since the trespass statute did not give fair notice that it was a crime

to refuse to leave private premises after being requested to do so. And see Kolender

The Court voided for vagueness a statute providing that any

person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who had been

convicted at least three times of being a disorderly person, or who

had been convicted of any crime in that or any other State, is to

be considered a gangster and subject to fine or imprisonment. The

Court observed that neither at the common law nor by statute are

the words ‘‘gang’’ and ‘‘gangster’’ given definite meaning, that the

enforcing agencies and courts were free to construe the terms

broadly or narrowly, and that the phrase ‘‘known to be a member’’

was ambiguous. The statute was held void on its face, and the

Court refused to allow specification of details in the particular indictment to save it because it was the statute, not the accusation,

that prescribed the rule to govern conduct. 15

Possibly concluding a controversy of long standing with regard

to the validity of vagrancy laws as generally written, 16 a unanimous Court in Papachristou v. City of Jacksonville 17 struck down

for vagueness an ordinance which punished ‘‘dissolute persons who

go about begging, . . . common night walkers, . . . common railers

and brawlers, persons wandering or strolling around from place to

place without any lawful purpose or object, habitual loafers, . . .

persons neglecting all lawful business and habitually spending

their time by frequenting house of ill fame, gaming houses, or

places where alcoholic beverages are sold or served, persons able to

work but habitually living upon the earnings of their wives or

minor children. . . .’’ The ordinance was invalid, said Justice Douglas for the Court, because it did not give fair notice, did not require

specific intent to commit an unlawful act, permitted and encouraged arbitrary and erratic arrests and convictions, committed too

much discretion to policemen, and criminalized activities which by

modern standards are normally innocent. Similarly, an ordinance

making it a criminal offense for three or more persons to assemble

on a sidewalk and conduct themselves in a manner annoying to

passers-by was impermissibly vague; because it encroached on the

freedom of assembly it was void on its face. 18 But an ordinance
AMENDMENT 14—RIGHTS GUARANTEED 1749

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). 19Palmer v. City of Euclid, 402 U.S. 544 (1971). 20 Colten v. Kentucky, 407 U.S. 104 (1972). 21 Connally v. General Construction Co., 269 U.S. 385 (1926). 22Giaccio v. Pennsylvania, 382 U.S. 399 (1966). 23Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940).

punishing ‘‘suspicious persons’’ was void only as applied to a person

engaging in ambiguous conduct which it was possible to fit within

the ordinance’s definition. 19 A statute authorizing conviction for

disorderly conduct of any person who refuses to move on upon police request and who is intent on causing inconvenience, annoyance, or alarm was upheld against facial challenge and as applied

to one interfering with police ticketing of a car for valid reasons. 20

A state statute imposing severe, cumulative punishments upon

contractors with the State who pay their workmen less than the

‘‘current rate of per diem wages in the locality where the work is

performed’’ was held to be ‘‘so vague that men of common intelligence must necessarily guess at its meaning and differ as to its

application.’’ 21 Similarly, a statute which allowed jurors to require

an acquitted defendant to pay the costs of the prosecution, elucidated only by the judge’s instruction to the jury that the defendant

should only have to pay the costs if it thought him guilty of ‘‘some

misconduct’’ though innocent of the crime with which he was

charged, was found to fall short of the requirements of due process. 22 But the Court sustained as neither too vague nor indefinite

a state law which provided for commitment of a psychopathic personality by probate action akin to a lunacy proceeding and which

had been construed by the state court as applying to those persons

who, by habitual course of misconduct in sexual matters, have evidenced utter lack of power to control their sexual impulses and are

likely to inflict injury. The underlying conditions—habitual course

of misconduct in sexual matters and lack of power to control impulses and likelihood of attack on others—were viewed as calling

for evidence of past conduct pointing to probable consequences and

as being as susceptible of proof as many of the criteria constantly

applied in criminal proceedings. 23

Other Aspects of Statutory Notice.—Conceptually related to

the problem of definiteness in criminal statutes is the problem of

the requisite notice a person must have that a statute commands

that something not be done or alternatively that unless something

is done criminal liability will result. Ordinarily, it can be said that

ignorance of the law affords no excuse, that everyone is presumed

to know that certain things may not be done. Moreover, in other
1750 AMENDMENT 14—RIGHTS GUARANTEED

24 E.g., United States v. Freed, 401 U.S. 601 (1971). 25 E.g., Boyce Motor Lines v. United States, 342 U.S. 337 (1952); Colautti v.

Franklin, 439 U.S. 379, 395 (1979). Cf. Screws v. United States, 325 U.S. 91, 101–

03 (1945) (plurality opinion). 26 E.g., Morissette v. United States, 342 U.S. 246 (1952). 27 355 U.S. 225 (1957). 28 Id. at 228, 229–30. 29For a thorough evaluation of the basis for and the nature of the entrapment

defense, see Seidman, The Supreme Court, Entrapment, and Our Criminal Justice

instances, the subject matter or conduct may be sufficient to alert

one that there are regulatory laws which must be observed. 24 In

still other instances, the requirement of ‘‘scienter’’ may take care

of the problem in that there may be a statutory requirement of intent expressed through some form of the word ‘‘willful,’’ 25 but the

Court has so far failed in dealing with those cases involving strict

liability to develop the implications of the mens rea requirement. 26

There remains the case of Lambert v. California, 27 invalidating a

municipal code that made it a crime for anyone who had ever been

convicted of a felony to remain in the city for more than five days

without registering. Emphasizing that the act of being in the city

was not itself blameworthy, the Court voided the conviction, holding that the failure to register was quite ‘‘unlike the commission

of acts, or the failure to act under circumstances that should alert

the doer to the consequences of his deed.’’ ‘‘Where a person did not

know of the duty to register and where there was no proof of the

probability of such knowledge, he may not be convicted consistently

with due process. Were it otherwise, the evil would be as great as

it is when the law is written in print too fine to read or in a language foreign to the community.’’ 28

Entrapment.—Certain criminal offenses, because they are

consensual actions taken between and among willing parties,

present police with difficult investigative problems. Some of that

difficulty may be alleviated through electronic and other surveillance, which is covered by the search and seizure provisions of the

Fourth Amendment, and in other respects informers may be utilized, which may implicate several constitutional provisions. Sometimes, however, police agents may ‘‘encourage’’ persons to engage

in criminal behavior, by seeking to buy from them or to sell to

them narcotics or contraband or by seeking to determine if public

employees or officers are corrupt by offering them bribes. The

Court has dealt with this issue in terms of the ‘‘entrapment’’ defense, though it is unclear whether the basis of the defense is one

of statutory construction—the legislature would not have intended

to punish conduct induced by police agents—one of supervisory authority of the federal courts to deter wrongful police conduct, or one

of due process command. 29
AMENDMENT 14—RIGHTS GUARANTEED 1751

Dilemma, 1981 SUP. CT. REV. 111. The statutory basis was said to be the ground

in the Court’s first discussion of the issue, Sorrells v. United States, 287 U.S. 435,

446–49 (1932), and that basis remains the choice of some Justices. Hampton v. United States, 425 U.S. 484, 488–89 (1976) (plurality opinion of Justices Rehnquist and

White and Chief Justice Burger). The supervisory power basis was argued by Justice Frankfurter in Sherman v. United States, 356 U.S. 369, 380 (1958) (concurring).

Utilization of that power was rejected in United States v. Russell, 411 U.S. 423, 490

(1973), and by the plurality in Hampton, supra, 490. The Hampton plurality thought

the due process clause would never be applicable, no matter what conduct government agents engaged in, unless they violated some protected right of the defendant,

and that inducement and encouragement could never do that; Justices Powell and

Blackmun, id. at 491, thought that police conduct, even in the case of a predisposed

defendant, could be so outrageous as to violate due process. The Russell and Hampton dissenters did not clearly differentiate between the supervisory power and due

process but seemed to believe that both were implicated. Id. at 495 (Justices Brennan, Stewart, and Marshall); Russell, supra, 439 (Justices Stewart, Brennan, and

Marshall). The Court again failed to clarify the basis for the defense in Mathews

v. United States, 485 U.S. 58 (1988), holding that a defendant in a federal criminal

case who denies commission of the crime is entitled to assert an ‘‘inconsistent’’ entrapment defense where the evidence warrants, and in Jacobson v. United States,

112 S. Ct. 1535, 1540 (1992) (invalidating a conviction under the Child Protection

Act of 1984 because government solicitation induced the defendant to purchase child

pornography). 30 Jacobson v. United States, 112 S. Ct. 1535, 1540 (1992). Here the Court held

that the government had failed to prove that the defendant was initially predisposed

to purchase child pornography, even though he had become so predisposed following

solicitation through an undercover ‘‘sting’’ operation. For several years government

agents had sent the defendant mailings soliciting his views on pornography and

child pornography, and urging him to obtain materials in order to fight censorship

and stand up for individual rights. 31Sorrells v. United States, 287 U.S. 435, 451–52 (1932); Sherman v. United

States, 356 U.S. 369, 376–78 (1958); Masciale v. United States, 356 U.S. 386, 388

(1958); United States v. Russell, 411 U.S. 423, 432–36 (1973); Hampton v. United

States, 425 U.S. 484, 488–489 (1976) (plurality opinion), and id. at 491 (Justices

Powell and Blackmun concurring). 32 Jacobson v. United States, 112 S. Ct. 1535, 1543 (1992).

The Court has employed the so-called ‘‘subjective approach’’ to

evaluating the defense of entrapment. This subjective approach follows a two-pronged analysis. First, the question is asked whether

the offense was induced by a government agent. Second, if the government has induced the defendant to break the law, ‘‘the prosecution must prove beyond reasonable doubt that the defendant was

disposed to commit the criminal act prior to first being approached

by Government agents.’’ 30 If the defendant can be shown to have

been ready and willing to commit the crime whenever the opportunity presented itself, the defense of entrapment is unavailing, no

matter the degree of inducement. 31 On the other hand, ‘‘[w]hen the

Government’s quest for conviction leads to the apprehension of an

otherwise law-abiding citizen who, if left to his own devices, likely

would never run afoul of the law, the courts should intervene.’’ 32

An ‘‘objective approach,’’ while rejected by the Supreme Court, has

been advocated by some Justices and recommended for codification
1752 AMENDMENT 14—RIGHTS GUARANTEED

33See 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). 34Sorrells 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). 35Thus, in Sorrells and Sherman government agents solicited defendants, in

Russell the agents supplied an ingredient, which was commonly available, and in

Hampton the agents supplied an essential and difficult to obtain ingredient. 36The defense was rejected as to all the ‘‘Abscam’’ defendants. E.g., United

States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983); United States v. Williams, 705 F.2d

603 (2d Cir. 1983); United States v. Jannotti, 673 F.2d 578 (3d Cir.), cert. denied,

457 U.S. 1106 (1982). 37Stovall v. Denno, 388 U.S. 293 (1967). 38Kirby v. Illinois, 406 U.S. 682 (1972). 39 United States v. Ash, 413 U.S. 300 (1973). 40 Neil v. Biggers, 409 U.S. 188, 196–201 (1972); Manson v. Brathwaite, 432

U.S. 98, 114–17 (1977). The factors to be considered in evaluating the likelihood of

misidentification include the opportunity of the witness to view the suspect at the

time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior

description of the suspect, the level of certainty demonstrated by the witness at the

confrontation, and the length of time between the crime and the confrontation. See

also Stovall v. Denno, 388 U.S. 293 (1967); Simmons v. United States, 390 U.S. 377

(1968); Foster v. California, 394 U.S. 440 (1969); Coleman v. Alabama, 399 U.S. 1

(1970).

by Congress and the state legislatures. 33 The objective approach

disregards the defendant’s predisposition and looks to the inducements used by government agents. If the government employed

means of persuasion or inducement creating a substantial risk that

the person tempted will engage in the conduct, the defense is available. 34 Typically, entrapment cases have risen in the narcotics

area, 35 but more recently, as in the ‘‘Abscam’’ controversy, the

focus has been on public corruption and the offering of bribes to

public officials. 36

Criminal Identification Process.—The conduct by police of

identification processes seeking to identify the perpetrators of

crimes—by lineups, showups, photographic displays, and the like—

can raise due process problems. For postindictment lineups and

showups conducted before June 12, 1967, 37 for preindictment lineups and showups, 38 and for identification processes at which the

defendant is not present, 39 the question of the admissibility of an

in-court identification or of testimony about an out-of-court identification is whether there is ‘‘a very substantial likelihood of

misidentification,’’ and that question must be determined ‘‘on the

totality of the circumstances.’’ 40

‘‘Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased
AMENDMENT 14—RIGHTS GUARANTEED 1753

41 Neil v. Biggers, 409 U.S. 188, 198 (1972). 42Manson v. Brathwaite, 432 U.S. 98, 107–14 (1977). The evaluative factors

were what the per se rule and the less strict rule contributed to excluding unreliable

eyewitness testimony from jury consideration, to deterrence of suggestive procedures, and to the administration of justice. The possibility of a per se rule in postStovall cases had been left open in Neil v. Biggers, 409 U.S. 188, 199 (1972). Due

process does not require that the in-court hearing to determine whether to exclude

a witness’ identification as arrived at improperly be out of the presence of the jury.

Watkins v. Sowders, 449 U.S. 341 (1981). 43 Hurtado v. California, 110 U.S. 516 (1884). 44Smith v. O’Grady, 312 U.S. 329 (1941) (guilty plea of layman unrepresented

by counsel to what prosecution represented as a charge of simple burglary but

which was in fact a charge of ‘‘burglary with explosives’’ carrying a much lengthier

sentence is void). See also Cole v. Arkansas, 333 U.S. 196 (1948) (affirmance by appellate court of conviction and sentence on ground that evidence showed defendant

guilty under a section of the statute not charged violated due process); In re Ruffalo,

390 U.S. 544 (1968) (disbarment in proceeding on charge which was not made until

after lawyer had testified denied due process); Rabe v. Washington, 405 U.S. 313

(1972) (affirmance of obscenity conviction because of the context in which a movie

was shown—grounds neither covered in the statute nor listed in the charge—was

invalid). 45 Norris v. Alabama, 294 U.S. 587 (1935); Cassell v. Texas, 339 U.S. 282 (1950);

Eubanks v. Louisiana, 356 U.S. 584 (1958); Hernandez v. Texas, 347 U.S. 475

(1954); Pierre v. Louisiana, 306 U.S. 354 (1939). See infra, pp. 1854–57. On prejudicial publicity, see Beck v. Washington, 369 U.S. 541 (1962). 46Snyder v. Massachusetts, 291 U.S. 97, 116, 117 (1934). See also Buchalter v.

New York, 319 U.S. 427, 429 (1943).

chance of misidentification is gratuitous.’’ 41 But, balancing the factors that it thought furnished the guidance for decision, the Court

declined to lay down a per se rule of exclusion of an identification

because it was obtained under conditions of unnecessary suggestiveness alone, feeling that the fairness standard of due process

does not require an evidentiary rule of such severity. 42

Initiation of the Prosecution.—Indictment by a grand jury

is not a requirement of due process; a State may proceed instead

by information. 43 Due process does require that, whatever the procedure, a defendant must be given adequate notice of the offense

charged against him and for which he is to be tried, 44 even aside

from the requirements of the Sixth Amendment. Where, of course,

a grand jury is utilized, it must be fairly constituted and free from

prejudicial influences. 45

Fair Trial.—The provisions of the Bill of Rights now applicable to the States contain basic guarantees of a fair trial—right to

counsel, right to speedy and public trial, right to be free from use

of unlawfully seized evidence and unlawfully obtained confessions,

and the like. But this does not exhaust the requirements of fairness. ‘‘Due process of law requires that the proceedings shall be

fair, but fairness is a relative, not an absolute concept. . . . What

is fair in one set of circumstances may be an act of tyranny in others.’’ 46 Conversely, ‘‘as applied to a criminal trial, denial of due
1754 AMENDMENT 14—RIGHTS GUARANTEED

47Lisenba v. California, 314 U.S. 219, 236 (1941). 48 273 U.S. 510 (1927). See also Ward v. Village of Monroeville, 409 U.S. 57

(1972). But see Dugan v. Ohio, 277 U.S. 61 (1928). Bias or prejudice of an appellate

judge can also deprive a litigant of due process. Aetna Life Ins. Co. v. LaVoie, 475

U.S. 813 (1986) (failure of state supreme court judge with pecuniary interest—a

pending suit on an indistinguishable claim—to recuse). 49 E.g., Fisher v. Pace, 336 U.S. 155 (1949); Ungar v. Sarafite, 376 U.S. 575

(1964); Holt v. Virginia, 381 U.S. 131 (1965); Mayberry v. Pennsylvania, 400 U.S.

455 (1971); Johnson v. Mississippi, 403 U.S. 212 (1971); Taylor v. Hayes, 418 U.S.

488 (1974). See generally Illinois v. Allen, 397 U.S. 337 (1970). In the context of alleged contempt before a judge acting as a one-man grand jury, the Court reversed

criminal contempt convictions, saying: ‘‘A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in

the trial of cases. But our system of law has always endeavored to prevent even the

probability of unfairness.’’ In re Murchison, 349 U.S. 133, 136 (1955). 50Smith 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). 51Mu’Min v. Virginia, 500 U.S. 415 (1991). For discussion of the requirements

of jury impartiality about capital punishment, see discussion under Sixth Amendment, supra p. 1415.

process is the failure to observe that fundamental fairness essential

to the very concept of justice. In order to declare a denial of it . . .

[the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as

necessarily prevents a fair trial.’’ 47

Bias or prejudice either inherent in the structure of the trial

system or as imposed by external events will deny one’s right to

a fair trial. Thus, in Tumey v. Ohio 48 it was held to violate due

process to vest trial of offenders in a judge who received, in addition to his salary, the costs imposed on a convicted defendant, and

who was also mayor of the municipality which received part of the

money collected in fines. The influence of contemptuous misbehavior in court upon the impartiality of the presiding judge who

may cite for contempt and sentence contemnors has divided the

Court. 49 Due process is also violated by the participation of a biased or otherwise partial juror, but there is no presumption that

jurors who are potentially compromised are in fact prejudiced; ordinarily the proper avenue of relief is a hearing at which the juror

may be questioned and the defense afforded an opportunity to

prove actual bias. 50 Exposure to pretrial publicity does not necessarily bias jurors. Thus, a trial judge’s refusal to question potential jurors about the contents of news reports to which they had

been exposed did not violate the defendant’s right to due process,

it being sufficient that the judge on voir dire asked the jurors

whether they could put aside what they had heard about the case,

listen to the evidence with an open mind, and render an impartial

verdict. 51 It is not a denial of due process for the prosecution to
AMENDMENT 14—RIGHTS GUARANTEED 1755

52Spencer v. Texas, 385 U.S. 554 (1967). 53Frank v. Mangum, 237 U.S. 309 (1915); Moore v. Dempsey, 261 U.S. 86

(1923). 54Sheppard v. Maxwell, 384 U.S. 333 (1966); Rideau v. Louisiana, 373 U.S. 723

(1963); Irvin v. Dowd, 366 U.S. 717 (1961); But see Stroble v. California, 343 U.S.

181 (1952); Murphy v. Florida, 421 U.S. 794 (1975). 55 Estes v. Texas, 381 U.S. 532 (1965). 56 Chandler v. Florida, 449 U.S. 560 (1981). The decision was unanimous but

Justices Stewart and White concurred on the basis that Estes had established a per

se constitutional rule which had to be overruled, id. at 583, 586, contrary to the

Court’s position. Id. at 570–74. 57Wardius v. Oregon, 412 U.S. 470 (1973).

call the jury’s attention to the defendant’s prior criminal record

when the object is to enable the jury, which has the sentencing

function as well as the guilt-determination function, once it has determined guilt or innocence and if the former, to increase the sentence which would otherwise be given under a recidivist statute. 52

Mob domination of a trial so as to rob the jury of its judgment

on the evidence presented, is, of course, a classic due process violation. 53 More recently, concern with the impact of prejudicial publicity upon jurors and potential jurors has caused the Court to instruct trial courts that they should be vigilant to guard against

such prejudice and to curb both the publicity and the jury’s exposure to it. 54 A state rule permitting the televising of certain trials

was struck down on the grounds that the harmful potential effect

on the jurors was substantial, that the testimony presented at trial

may be distorted by the multifaceted influence of television upon

the conduct of witnesses, that the judge’s ability to preside over the

trial and guarantee fairness is considerably encumbered to the possible detriment of fairness, and that the defendant is likely to be

harassed by his television exposure. 55 Subsequently, however, in

part because of improvements in technology which caused much

less disruption of the trial process and in part because of the lack

of empirical data showing that the mere presence of the broadcast

media in the courtroom necessarily has an adverse effect on the

process, the Court has held that due process does not altogether

preclude the televising of state criminal trials. 56

It is permissible for the State to require a defendant to give

pretrial notice of an intention to rely on an alibi defense and to furnish the names of supporting witnesses, but due process requires

reciprocal discovery in such circumstances, necessitating that the

State give defendant pretrial notice of its rebuttal evidence on the

alibi issue. 57 Because of the possible impairment of the presumption of innocence in the minds of the jurors, due process is violated

when the accused is compelled to stand trial before a jury while
1756 AMENDMENT 14—RIGHTS GUARANTEED

58 Estelle v. Williams, 425 U.S. 501 (1976). The convicted defendant was denied

habeas relief, however, because of failure to object at trial. But cf. Holbrook v.

Flynn, 475 U.S. 560 (1986) (presence in courtroom of uniformed state troopers serving as security guards was not the same sort of inherently prejudicial situation). 59 Chambers v. Mississippi, 410 U.S. 284 (1973). See also Davis v. Alaska, 415

U.S. 786 (1974) (refusal to permit defendant to examine prosecution witness about

his adjudication as juvenile delinquent and status on probation at time, in order to

show possible bias, was due process violation, although general principle of protecting anonymity of juvenile offenders was valid); Crane v. Kentucky, 476 U.S. 683

(1986) (exclusion of testimony as to circumstances of a confession can deprive a defendant of a fair trial when the circumstances bear on the credibility as well as the

voluntariness of the confession). 60 Rock v. Arkansas, 483 U.S. 44 (1987). 61Taylor v. Kentucky, 436 U.S. 478 (1978). However, an instruction on the presumption of innocence need not be given in every case, Kentucky v. Whorton, 441

U.S. 786 (1979), the Court reiterating that the totality of the circumstances must

be looked to in order to determine if failure to so instruct denied due process. The

circumstances emphasized in Taylor included the skeletal instruction on burden of

proof combined with the prosecutor’s remarks in his opening and closing statements

inviting the jury to consider the defendant’s prior record and his indictment in the

present case as indicating guilt. See also Sandstrom v. Montana, 442 U.S. 510

(1979) (instructing jury trying person charged with ‘‘purposely or knowingly’’ causing victim’s death that ‘‘law presumes that a person intends the ordinary consequences of his voluntary acts’’ denied due process because jury could have treated

the presumption as conclusive or as shifting burden of persuasion and in either

event State would not have carried its burden of proving guilt). And see Cupp v.

Naughten, 414 U.S. 141 (1973); Henderson v. Kibbe, 431 U.S. 145, 154–55 (1973).

For other cases applying Sandstrom, see Francis v. Franklin, 471 U.S. 307 (1985)

(contradictory but ambiguous instruction not clearly explaining state’s burden of

persuasion on intent does not erase Sandstrom error in earlier part of charge); Rose

v. Clark, 478 U.S. 570 (1986) (Sandstrom error can in some circumstances constitute

harmless error under principles of Chapman v. California, 386 U.S. 18 (1967)). Similarly, improper arguments by a prosecutor do not necessarily constitute ‘‘plain

error,’’ and a reviewing court may consider in the context of the entire record of the

dressed in identifiable prison clothes. 58 Ordinary evidentiary rules

of criminal trials may in some instances deny a defendant due

process. Thus, the combination in a trial of two rules (1) that denied defendant the right to cross-examine his own witness, whom

he had called because the prosecution would not, in order to elicit

evidence exculpatory to defendant and (2) that denied defendant

the right to introduce the testimony of witnesses about matters told

them out of court on the ground the testimony would be hearsay,

under all the circumstances, denied defendant his constitutional

right to present his own defense in a meaningful way. 59 Basic to

due process is the right to testify in one’s own defense; this right

may not be restricted, the Court has held, by a state’s per se rule

excluding all hypnotically refreshed testimony. 60 Even though the

burden on defendant is heavy to show that an erroneous instruction or the failure to give a requested instruction tainted his conviction, under some circumstances it is a violation of due process

and reversible error to fail to instruct the jury that the defendant

is entitled to a presumption of innocence. 61 It does not deny a de-
AMENDMENT 14—RIGHTS GUARANTEED 1757

trial the trial court’s failure to redress such error in the absence of contemporaneous

objection. United States v. Young, 470 U.S. 1 (1985). 62 North v. Russell, 427 U.S. 328 (1976). 63 United States v. Jackson, 390 U.S. 570 (1968). 64 North Carolina v. Alford, 400 U.S. 25 (1971); Parker v. North Carolina, 397

U.S. 790 (1970). See also Brady v. United States, 397 U.S. 742 (1970). A guilty plea

will ordinarily waive challenges to alleged unconstitutional police practices occurring prior to the plea, unless the defendant can show that the plea resulted from

incompetent counsel. Tollett v. Henderson, 411 U.S. 258 (1973); Davis v. United

States, 411 U.S. 233 (1973). But see Blackledge v. Perry, 417 U.S. 21 (1974). The

State can permit pleas of guilty in which the defendant reserves the right to raise

constitutional questions on appeal, and federal habeas courts will honor that arrangement. Lefkowitz v. Newsome, 420 U.S. 283 (1975). Release-dismissal agreements, pursuant to which the prosecution agrees to dismiss criminal charges in exchange for the defendant’s agreement to release his right to file a civil action for

alleged police or prosecutorial misconduct, are not per se invalid. Town of Newton

v. Rumery, 480 U.S. 386 (1987). 65 Blackledge v. Allison, 431 U.S. 63, 71 (1977). 66 Bordenkircher v. Hayes, 434 U.S. 357 (1978). Charged with forgery, Hayes

was informed during plea negotiations that if he would plead guilty the prosecutor

would recommend a five-year sentence; if he did not plead guilty, the prosecutor

would also seek an indictment under the habitual criminal statute under which

Hayes, because of two prior felony convictions, would receive a mandatory life sentence if convicted. Hayes refused to plead, was reindicted, and upon conviction was

sentenced to life. Four Justices dissented, id. at 365, 368, contending that the Court

had watered down North Carolina v. Pearce, 395 U.S. 711 (1969). See also United

States v. Goodwin, 457 U.S. 368 (1982).

fendant due process to subject him initially to trial before a

nonlawyer police court judge when there is a later trial de novo

available under the State’s court system. 62

Guilty Pleas.—A defendant may plead guilty instead of insisting that the prosecution prove him guilty. There are a number of

different reasons why a defendant may be willing to plead guilty,

perhaps because of overwhelming evidence against him, perhaps

because, while the evidence leaves the outcome in doubt, should he

go to trial and be convicted his sentence will be more severe than

if he pleads guilty, perhaps to secure some other advantage. Often

the defendant and his attorney engage in ‘‘plea bargaining’’ with

the prosecution so that he is guaranteed a light sentence or is allowed to plead to a lesser offense. While the government may not

structure its system so as to coerce a guilty plea, 63 a guilty plea

that is entered voluntarily, knowingly, and understandingly, even

to obtain an advantage, is sufficient to overcome constitutional objections. 64 The guilty plea and the often concomitant plea bargain

are important and necessary components of the criminal justice

system, 65 and it is not impermissible for a prosecutor during such

plea bargains to put a defendant to a hard choice, requiring him

to forego his right to go to trial in return for escaping what is likely

to be a much more severe penalty if he does elect to go to trial. 66
1758 AMENDMENT 14—RIGHTS GUARANTEED

67 Boykin v. Alabama, 395 U.S. 238 (1969). In Henderson v. Morgan, 426 U.S.

637 (1976), the Court held that a defendant charged with first degree murder who

elected to plead guilty to second degree murder had not voluntarily, in the constitutional sense, entered the plea because neither his counsel nor the trial judge had

informed him that an intent to cause the death of the victim was an essential element of guilt in the second degree; consequently no showing was made that he

knowingly was admitting such intent. ‘‘A plea may be involuntary either because

the accused does not understand the nature of the constitutional protections that

he is waiving . . . or because he has such an incomplete understanding of the charge

that his plea cannot stand as an intelligent admission of guilt.’’ Id. at 645 n.13. See

also Blackledge v. Allison, 431 U.S. 63 (1977).

68Santobello 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).

69Mooney v. Holahan, 294 U.S. 103, 112 (1935).

70The 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).

The court must inquire whether the defendant is pleading voluntarily, knowingly, and understandingly, 67 and ‘‘the adjudicative

element inherent in accepting a plea of guilty must be attended by

safeguards to insure the defendant what is reasonably due in the

circumstances. Those circumstances will vary, but a constant factor

is that when a plea rests in any significant degree on a promise

or agreement of the prosecutor, so that it can be said to be part

of the inducement or consideration, such promise must be fulfilled.’’ 68

Prosecutorial Misconduct.—When a conviction is obtained

by the presentation of testimony known to the prosecuting authorities to have been perjured, due process is violated. The clause ‘‘cannot be deemed to be satisfied by mere notice and hearing if a State

has contrived a conviction through the pretense of a trial which in

truth is but used as a means of depriving a defendant of liberty

through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance . . .

is as inconsistent with the rudimentary demands of justice as is

the obtaining of a like result by intimidation.’’ 69 The quoted language was dictum in the case in which it was uttered, 70 but the

principle enunciated has been utilized to require state officials to

controvert allegations of convicted persons that knowingly false tes-
AMENDMENT 14—RIGHTS GUARANTEED 1759

71Pyle v. Kansas, 317 U.S. 213 (1942); White v. Ragen, 324 U.S. 760 (1945).

See also New York ex rel. Whitman v. Wilson, 318 U.S. 688 (1943); Ex parte Hawk,

321 U.S. 114 (1914). But see Hysler v. Florida, 315 U.S. 411 (1942); Lisenba v. California, 314 U.S. 219 (1941). 72 Napue v. Illinois, 360 U.S. 264 (1959); Alcorta v. Texas, 355 U.S. 28 (1957).

In the former case, the principal prosecution witness was defendant’s accomplice,

and he testified that he had received no promise of consideration in return for his

testimony. In fact, the prosecutor had promised him consideration, but did nothing

to correct the false testimony. See also Giglio v. United States, 405 U.S. 150 (1972)

(same). In the latter case, involving a husband’s killing of his wife because of her

infidelity, a prosecution witness testified at the habeas corpus hearing that he told

the prosecutor that he had been intimate with the woman but that the prosecutor

had told him to volunteer nothing of it, so that at trial he had testified his relationship with the woman was wholly casual. In both cases, the Court deemed it irrelevant that the false testimony had gone only to the credibility of the witness rather

than to the defendant’s guilt. What if the prosecution should become aware of the

perjury of a prosecution witness following the trial? Cf. Durley v. Mayo, 351 U.S.

277 (1956). But see Smith v. Phillips, 455 U.S. 209, 218–21 (1982) (prosecutor’s failure to disclose that one of the jurors has a job application pending before him, thus

rendering him possibly partial, does not go to fairness of the trial and due process

is not violated). 73 386 U.S. 1 (1967). 74 373 U.S. 83, 87 (1963). In Jencks v. United States, 353 U.S. 657 (1957), in

the exercise of its supervisory power over the federal courts, the Court held that

the defense was entitled to obtain, for impeachment purposes, statements which had

been made to government agents by government witnesses during the investigatory

stage. Cf. Scales v. United States, 367 U.S. 203, 257–58 (1961). A subsequent statute modified but largely codified the decision and was upheld by the Court. Palermo

v. United States, 360 U.S. 343 (1959), sustaining 18 U.S.C. § 3500. 75See the division of opinion in Giles v. Maryland, 386 U.S. 66 (1967).

timony had been used to convict, 71 and to upset convictions found

to have been so procured. 72 Extending the principle, the Court in

Miller v. Pate 73 upset a conviction obtained after the prosecution

had represented to the jury that a pair of men’s shorts found near

the scene of a sex attack belonged to the defendant and that they

were stained with blood; the defendant showed in a habeas corpus

proceeding that no evidence connected him with the shorts and furthermore that the shorts were not in fact bloodstained, and that

the prosecution had known these facts.

Furthermore, in Brady v. Maryland, 74 the Court held ‘‘that the

suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.’’ In that case, the prosecution had suppressed an extrajudicial confession of defendant’s accomplice that

he had actually committed the murder; the accomplice’s confession

could have influenced the jury’s determination of punishment but

not its judgment of guilt. But this beginning toward the development of criminal discovery was not carried forward, 75 and the

Court has waivered in its application of Brady.
1760 AMENDMENT 14—RIGHTS GUARANTEED

76 408 U.S. 786, 794–95 (1972). Joining Justice Blackmun’s opinion were Justices Brennan, White, Rehnquist, and Chief Justice Burger. Dissenting were Justices Douglas, Stewart, Marshall, and Powell. Id. at 800. 77 427 U.S. 97 (1976). 78 Id. at 103–04. This situation is the Mooney v. Holohan type of case. 79 Id. at 104–06. This the Brady situation. 80 Id. at 106–14. This was the Agurs fact situation. Similarly, there is no obligation that law enforcement officials preserve breath samples which have been utilized

in a breath-analysis test; the Agurs materiality standard is met only by evidence

which ‘‘possess[es] an exculpatory value . . . apparent before [it] was destroyed, and

also [is] of such a nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means.’’ California v. Trombetta, 467 U.S.

479, 489 (1984). See also Arizona v. Youngblood, 488 U.S. 51 (1988) (negligent failure to refrigerate and otherwise preserve potentially exculpatory physical evidence

from sexual assault kit does not violate a defendant’s due process rights absent bad

faith on the part of the police).

In finding Brady inapplicable because the evidence withheld

was not material and not exculpatory, the Court in Moore v. Illinois, 76 restated the governing principles. ‘‘The heart of the holding

in Brady is the prosecution’s suppression of evidence, in the face

of a defense production request, where the evidence is favorable to

the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the

defense, and (c) the materiality of the evidence.’’

In United States v. Agurs, 77 the Court summarized and somewhat expanded the prosecutor’s obligation to disclose to the defense

exculpatory evidence in his possession, even in the absence of a request, or upon a general request, by defendant. The obligation is

expressed in a tripartite test of materiality of the exculpatory evidence in the context of the trial record. First, if the prosecutor

knew or should have known that testimony given to the trial was

perjured, the conviction must be set aside if there is any reasonable

likelihood that the false testimony could have affected the judgment of the jury. 78 Second, if the defense specifically requested certain evidence and the prosecutor withheld it, the conviction must

be set aside if the suppressed evidence might have affected the outcome of the trial. 79 Third (the new law created in Agurs), if the defense did not make a request at all, or simply asked for ‘‘all Brady

material’’ or for ‘‘anything exculpatory,’’ a duty resides in the prosecution to reveal to the defense obviously exculpatory evidence; if

the prosecutor does not reveal it, reversal of a conviction may be

required, but only if the undisclosed evidence creates a reasonable

doubt as to the defendant’s guilt. 80

A prosecutor does not violate the due process clause when, in

negotiating with a defendant to obtain a guilty plea or some other

action that will lessen the trial burden, such as trial before a judge
AMENDMENT 14—RIGHTS GUARANTEED 1761

81 Bordenkircher v. Hayes, 434 U.S. 357 (1978); United States v. Goodwin, 457

U.S. 368 (1982). In the former case, during plea negotiations, the prosecutor told

defendant that if he did not plead guilty to the charges he would bring additional

charges, and he did so upon defendant’s continued refusal. In the latter case, defendant was charged with a misdemeanor and could have been tried before a magistrate; he refused to plead guilty and sought a jury trial in district court. The Government obtained a four-count felony indictment based upon the same conduct and

acquired a conviction. 82 Blackledge v. Perry, 417 U.S. 21 (1974). Defendant was convicted in an inferior court of a misdemeanor. He had a right to a de novo trial in superior court,

but when he exercised the right the prosecutor obtained a felony indictment based

upon the same conduct. The distinction the Court draws between this case and

Bordenkircher and Goodwin is that of pretrial conduct, in which vindictiveness is

not likely, and posttrial conduct, in which vindictiveness is more likely and is not

permitted. Accord, Thigpen v. Roberts, 468 U.S. 27 (1984). 83 In re Winship, 397 U.S. 358, 364 (1970). 84 Id. at 363 (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)). Justice

Harlan’s Winship concurrence, id. at 368, proceeded on the basis that inasmuch as

there is likelihood of error in any system of reconstructing past events, the error

of convicting the innocent should be reduced to the greatest extent possible through

the use of the reasonable doubt standard. 85Miles v. United States, 103 U.S. 304, 312 (1881); Davis v. United States, 160

U.S. 469, 488 (1895); Holt v. United States, 218 U.S. 245, 253 (1910); Speiser v.

Randall, 357 U.S. 513, 525–26 (1958). 86 In addition to Winship, see also Estelle v. Williams, 425 U.S. 501, 503 (1976);

Henderson v. Kibbe, 431 U.S. 145, 153 (1977); Ulster County Court v. Allen, 442

U.S. 140, 156 (1979); Sandstorm v. Montana, 442 U.S. 510, 520–24 (1979). On the

interrelated concepts of the burden of the prosecution to prove guilt beyond a reasonable doubt and defendant’s entitlement to a presumption of innocence, see Taylor

rather than jury, he threatens and carries out the threat to seek

a more severe sentence, either by charging a greater offense or recommending a longer sentence. 81 But the prosecutor does deny due

process if he penalizes the assertion of a right or privilege by the

defendant by charging more severely or recommending a longer

sentence. 82 The distinction appears to represent very fine linedrawing, but it appears to be one the Court is committed to.

Proof, Burden of Proof, and Presumptions.—The due process clauses of the Fifth and Fourteenth Amendments ‘‘[protect] the

accused against conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime with which he

is charged.’’ 83 ‘‘The reasonable doubt standard plays a vital role in

the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error.

The standard provides concrete substance for the presumption of

innocence—that bedrock ‘axiomatic and elementary’ principle

whose ‘enforcement lies at the foundation of the administration of

our criminal law.’ ’’ 84 In many past cases, this standard was assumed to be the required one, 85 but because it was so widely accepted only recently has the Court had the opportunity to pronounce it guaranteed by due process. 86 The presumption of inno-
1762 AMENDMENT 14—RIGHTS GUARANTEED

v. Kentucky, 436 U.S. 478, 483–86 (1978), and Kentucky v. Whorton, 441 U.S. 786

(1979). 87 E.g., Deutch v. United States, 367 U.S. 456, 471 (1961). See also Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam) (jury instruction that explains ‘‘reasonable

doubt’’ as doubt that would give rise to a ‘‘grave uncertainty,’’ as equivalent to a

‘‘substantial doubt,’’ and as requiring ‘‘a moral certainty,’’ suggests a higher degree

of certainty than is required for acquittal, and therefore violates the Due Process

Clause). 88 Holt v. United States, 218 U.S. 245 (1910); Agnew v. United States, 165 U.S.

36 (1897). These cases overturned Coffin v. United States, 156 U.S. 432, 460 (1895),

in which the Court held that the presumption of innocence was evidence from which

the jury could find a reasonable doubt. 89Thompson v. City of Louisville, 362 U.S. 199 (1960); Garner v. Louisiana, 368

U.S. 157 (1961); Taylor v. Louisiana, 370 U.S. 154 (1962); Barr v. City of Columbia,

378 U.S. 146 (1964); Johnson v. Florida, 391 U.S. 596 (1968). See also Chessman

v. Teets, 354 U.S. 156 (1957). 90 443 U.S. 307 (1979). 91 Id. at 316, 318–19. On a somewhat related point, the Court has ruled that

a general guilty verdict on a multiple-object conspiracy need not be set aside if the

evidence is inadequate to support conviction as to one of the objects of the conspiracy, but is adequate to support conviction as to another. Griffin v. United States,

112 U.S. 466 (1991). 92 421 U.S. 684 (1975). See also Sandstrom v. Montana, 442 U.S. 510, 520–24

(1979).

cence is valuable in assuring defendants a fair trial, 87 and it operates to ensure that the jury considers the case solely on the evidence. 88

The Court has long held it would set aside under the due process clause convictions that are supported by no evidence at all, 89

but Winship necessitated a reconsideration of whether it should in

reviewing state cases weigh the sufficiency of the evidence. Thus,

in Jackson v. Virginia, 90 it held that federal courts, on direct appeal of federal convictions or collateral review of state convictions,

must satisfy themselves whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The

question the reviewing court is to ask itself is not whether it believes the evidence at the trial established guilt beyond a reasonable doubt, but whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt. 91

Inasmuch as due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the

crime charged, the Court held in Mullaney v. Wilbur 92 that it was

a denial of this constitutional guarantee to require a defendant

charged with murder to prove that he acted ‘‘in the heat of passion

on sudden provocation’’ in order to reduce the homicide to manslaughter. The Court indicated that a balancing of interests test

was to be employed to determine when the due process clause re-
AMENDMENT 14—RIGHTS GUARANTEED 1763

93 Rivera v. Delaware, 429 U.S. 877 (1976), dismissing as not presenting a substantial federal question an appeal from a holding that Mullaney did not prevent

a State from placing on the defendant the burden of proving insanity by a preponderance of the evidence. See Patterson v. New York, 432 U.S. 197, 202–05 (1977)

(explaining the import of Rivera). Justice Rehnquist and Chief Justice Burger concurring in Mullaney, 421 U.S. at 704, 705, had argued that the case did not require

any reconsideration of the holding in Leland v. Oregon, 343 U.S. 790 (1952), that

the defense may be required to prove insanity beyond a reasonable doubt. 94Patterson v. New York, 432 U.S. 197 (1977). 95Dissenting in Patterson, Justice Powell argued that the two statutes were

functional equivalents that should be treated alike constitutionally. He would hold

that as to those facts which historically have made a substantial difference in the

punishment and stigma flowing from a criminal act the State always bears the burden of persuasion but that new affirmative defenses may be created and the burden

of establishing them placed on the defendant. Id. at 216. Patterson was followed in

Martin v. Ohio, 480 U.S. 228 (1987) (state need not disprove defendant acted in selfdefense 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,

quired the prosecution to carry the burden and when some part of

the burden might be shifted to the defendant, but the decision

called into question the practice in many States under which some

burdens of persuasion were borne by the defense, and raised the

prospect that the prosecution must bear all burdens of persuasion,

a significant and weighty task given the large numbers of affirmative defenses.

But the Court soon summarily rejected the argument that

Mullaney means that the prosecution must negate the insanity defense, 93 and in full-scale consideration upheld a state statute that

provided that an intentional killing is murder but permitted the

defendant to assert ‘‘extreme emotional disturbance’’ as an affirmative defense which, if proved by the defense by a preponderance of

the evidence, would reduce the murder offense to manslaughter. 94

According to the Court, the constitutional deficiency in Mullaney

was that the statute made malice an element of the offense but

permitted malice to be presumed upon proof of the other elements

and required the defendant to prove the absence of malice. In Patterson the statute obligated the State to prove each element of the

offense (the death, the intent to kill, and the causation) beyond a

reasonable doubt, but allowed the defendant to present an affirmative defense that would reduce the degree of the offense, and as to

which the defendant bears the burden of persuasion by a preponderance of the evidence. The decisive issue, then, was whether the

statute required the state to prove beyond a reasonable doubt each

element of the offense. So defined, the distinction and the constitutional mandate are formalistic, and the legislature can shift burdens of persuasion between prosecution and defense easily through

the statutory definitions of the offenses. 95 Also formalistic is the
1764 AMENDMENT 14—RIGHTS GUARANTEED

again dissenting, urged a distinction between defenses that negate an element of the

crime and those that do not. Id. at 236, 240.

96McMillan v. Pennsylvania, 477 U.S. 79 (1986) (the finding increased the minimum sentence that could be imposed but did not affect the maximum sentence).

97See, e.g., Yee Hem v. United States, 268 U.S. 178 (1925) (upholding statute

that proscribed possession of smoking opium that had been illegally imported and

authorized jury to presume illegal importation from fact of possession); Manley v.

Georgia, 279 U.S. 1 (1929) (invalidating statutory presumption that every insolvency

of a bank shall be deemed fraudulent).

98 319 U.S. 463, 467 (1943) (voiding presumption of transportation of firearm in

interstate commerce from possession). Compare United States v. Gainey, 380 U.S.

63 (1965) (upholding presumption from presence at site of illegal still that defendant

was ‘‘carrying on’’ or aiding in ‘‘carrying on’’ its operation), with United States v.

Romano, 382 U.S. 136 (1965) (voiding presumption from presence at site of illegal

still that defendant had possession, custody, or control of still).

99 395 U.S. 6, 36 (1969).

100 Id. at 37–54. While some of the reasoning in Yee Hem, supra n.97, was disapproved, it was factually distinguished as involving users of ‘‘hard’’ narcotics.

distinction between elements of the crime and sentencing factors;

a state may treat as a sentencing consideration provable by a preponderance of the evidence the fact that the defendant ‘‘visibly possessed a firearm’’ during commission of the offense. 96

Quite closely related is the issue of statutory presumptions;

these generally provide for the proof of the presumed fact, an element of a crime, by the establishment of another fact, the basic

fact. 97 In Tot v. United States, 98 the Court held that a statutory

presumption was valid under the due process clause if it met a ‘‘rational connection’’ test. ‘‘Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between

the fact proved and the ultimate fact presumed, if the inference of

the one from the proof of the other is arbitrary because of lack of

connection between the two in common experience.’’ In Leary v.

United States, 99 however, the due process test was stiffened to require that for such a ‘‘rational connection’’ to exist, it must ‘‘at least

be said with substantial assurance that the presumed fact is more

likely than not to flow from the proved fact on which it is made

to depend.’’ Thus, a provision which permitted a jury to infer from

defendant’s possession of marijuana his knowledge of its illegal importation was voided. A lengthy canvass of factual materials established to the Court’s satisfaction that while the greater part of

marijuana consumed here is of foreign origin there was still a good

amount produced domestically and there was thus no way to assure that the majority of those possessing marijuana have any reason to know their marijuana is imported. 100 The Court left open

the question whether a presumption which survived the ‘‘rational

connection’’ test ‘‘must also satisfy the criminal ‘reasonable doubt’
AMENDMENT 14—RIGHTS GUARANTEED 1765

101 Id. at 36 n.64. The matter was also left open in Turner v. United States, 396

U.S. 398 (1970) (judged by either ‘‘rational connection’’ or ‘‘reasonable doubt,’’ a presumption that the possessor of heroin knew it was illegally imported was valid, but

the same presumption with regard to cocaine was invalid under the ‘‘rational connection’’ test because a great deal of the substance was produced domestically), and

in Barnes v. United States, 412 U.S. 837 (1973) (under either test a presumption

that possession of recently stolen property, if not satisfactorily explained, is grounds

for inferring possessor knew it was stolen satisfies due process). 102 Ulster County Court v. Allen, 442 U.S. 140, 166–67 (1979). 103The majority thought that possession was more likely than not the case from

the circumstances, while the four dissenters disagreed. Id. at 168 (Justices Powell,

Brennan, Stewart, and Marshall). See also Estelle v. McGuire, 112 S. Ct. 475 (1991)

(upholding a jury instruction that, to dissenting Justices O’Connor and Stevens, id.

at 484, seemed to direct the jury to draw the inference that evidence that a child

had been ‘‘battered’’ in the past meant that the defendant, the child’s father, had

necessarily done the battering). 104 334 U.S. 736, 740–41 (1948). In Hicks v. Oklahoma, 447 U.S. 343 (1980), the

jury had been charged in accordance with an habitual offender statute that if it

found defendant guilty of the offense charged, which would be a third felony conviction, it should assess punishment at 40 years imprisonment. The jury convicted and

gave defendant 40 years. Subsequently, in another case, the habitual offender under

standard if proof of the crime charged or an essential element

thereof depends upon its use.’’ 101

In its most recent case, a closely divided Court drew a distinction between mandatory presumptions, which a jury must accept,

and permissive presumptions, which may be presented to the jury

as part of all the evidence to be considered. With respect to mandatory presumptions, ‘‘since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption,

unless the fact proved is sufficient to support the inference of guilt

beyond a reasonable doubt.’’ But, with respect to permissive presumptions, ‘‘the prosecution may rely on all of the evidence in the

record to meet the reasonable doubt standard. There is no more

reason to require a permissive statutory presumption to meet a

reasonable-doubt standard before it may be permitted to play any

part in a trial than there is to require that degree of probative

force for other relevant evidence before it may be admitted.’’ 102

Thus, because the jury was told it had to believe in defendants’

guilt beyond a reasonable doubt and that it could consider the inference, due process was not violated by the application of the statutory presumption that the presence of a firearm in an automobile

is presumptive evidence of its illegal possession by all persons then

occupying the vehicle. 103

The division of the Court in these cases and in the Mullaney

v. Wilbur line of cases clearly shows the unsettled doctrinal nature

of the issues.

Sentencing.—In Townsend v. Burke 104 the Court overturned

a sentence imposed on an uncounseled defendant by a judge who
1766 AMENDMENT 14—RIGHTS GUARANTEED

which Hicks had been sentenced was declared unconstitutional, but Hicks’ conviction was affirmed on the basis that his sentence was still within the permissible

range open to the jury. The Supreme Court reversed. Hicks was denied due process

because he was statutorily entitled to the exercise of the jury’s discretion and could

have been given a sentence as low as ten years. That the jury might still have given

the stiffer sentence was only conjectural. On other due process restrictions on the

determination of the applicability of recidivist statutes to convicted defendants, see

Chewing v. Cunningham, 368 U.S. 443 (1962); Oyler v. Boles, 368 U.S. 448 (1962);

and Spencer v. Texas, 385 U.S. 554 (1967). On Eighth Amendment relevance, see

supra, pp. 1495–96. 105 337 U.S. 241 (1949). See also Williams v. Oklahoma, 358 U.S. 576 (1959). 106 430 U.S. 349 (1977). 107Only Justices Stevens, Stewart, and Powell took the position described in the

text. Id. at 357–61. Justice Brennan without elaboration thought the result comin reciting defendant’s record from the bench made several errors

and facetious comments. ‘‘[W]hile disadvantaged by lack of counsel,

this prisoner was sentenced on the basis of assumptions concerning

his criminal record which were materially untrue. Such a result,

whether caused by carelessness or design, is inconsistent with due

process of law, and such a conviction cannot stand.’’ But in the absence of revelations of errors by the sentencing judge, the content

of procedural due process at sentencing is vague.

Williams v. New York 105 upheld the imposition of the death

penalty although the jury in convicting had recommended mercy,

the judge indicating that he was disregarding the recommendation

because of information in the presentence report prepared by a probation officer and not shown to the defendant or his counsel. The

Court viewed as highly undesirable the restriction of judicial discretion in sentencing by requiring adherence to rules of evidence

which would exclude highly relevant and informative material;

similarly, disclosure of such information to the defense could well

dry up sources which feared retribution or embarrassment. Thus,

hearsay and rumors would be considered and there would be no opportunity of rebuttal. Still in the context of capital cases, the Court

has now, although by no consistent rationale, limited Williams. In

Gardner v. Florida, 106 the jury had recommended a life sentence

upon convicting defendant of murder, but the trial judge sentenced

the defendant to death, relying in part on a confidential

presentence report which he did not characterize or make available

to defense or prosecution. Three Justices found that because death

was significantly different from other punishments and because

sentencing procedures were subject to higher due process standards

than when Williams was decided, the report must be made part of

the record for review so that the factors motivating imposition of

the death penalty may be known, and ordinarily must be made

available to the defense. All but one of the other Justices joined the

result on various other bases. 107 On the other hand, in United
AMENDMENT 14—RIGHTS GUARANTEED 1767

pelled by due process, id. at 364, Justices White and Blackmun thought the result

necessitated by the Eighth Amendment, id. at 362, 364, as did Justice Marshall in

a different manner. Id. at 365. Chief Justice Burger concurred only in the result,

id. at 362, and Justice Rehnquist dissented. Id. at 371. See also Lankford v. Idaho,

500 U.S. 110 (1991) (due process denied where judge sentenced defendant to death

after judge’s and prosecutor’s actions misled defendant and counsel into believing

that death penalty would not be at issue in sentencing hearing). 108 438 U.S. 41 (1978). 109See 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. 110 386 U.S. 605 (1967). 111 389 U.S. 128 (1967). 112 383 U.S. 541, 554, 561, 563 (1966). Kent was ambiguous whether it was

based on statutory interpretation or constitutional analysis; In re Gault, 387 U.S.

1 (1967), appears to have constitutionalized the language.

States v. Grayson, 108 a noncapital case, the Court relied heavily on

Williams in holding that a sentencing judge may properly consider

his belief that the defendant was untruthful in his trial testimony

in deciding to impose a more severe sentence than he would otherwise have imposed. Under the current scheme of individualized indeterminate sentencing, the Court declared, the judge must be free

to consider the broadest range of information in assessing the defendant’s prospects for rehabilitation; defendant’s truthfulness, as

assessed by the trial judge from his own observations, is relevant

information. 109

In Specht v. Patterson, 110 the Court specifically reaffirmed Williams, but declined to apply it, finding that due process had been

denied under circumstances significantly different from those of

Williams. Specht had been convicted of taking indecent liberties,

which carried a maximum sentence of ten years, but was sentenced

under a sex offenders statute to an indefinite term of one day to

life. The sex offenders law, the Court observed, did not make the

commission of the particular offense the basis for sentencing. Instead, by triggering a new hearing to determine whether the convicted person was a public threat, an habitual offender, or mentally

ill, the law in effect constituted a new charge that must be accompanied by procedural safeguards. Mempa v. Rhay 111 held that

when sentencing is deferred subject to probation and the terms of

probation are allegedly violated so that the convicted defendant is

returned for sentencing, he must then be represented by counsel,

inasmuch as it is a point in the process where substantial rights

of the defendant may be affected. Moreover, in Kent v. United

States 112 the Court required that before a juvenile court decided to

waive jurisdiction and transfer a juvenile to an adult court it must

hold a hearing and permit defense counsel to examine the probation officer’s report which formed the basis for the court’s decision.
1768 AMENDMENT 14—RIGHTS GUARANTEED

113 North Carolina v. Pearce, 395 U.S. 711 (1969). Pearce was held to be

nonretroactive in Michigan v. Payne, 412 U.S. 47 (1973). When a State provides a

two-tier court system in which one may have an expeditious and somewhat informal

trial in an inferior court with an absolute right to trial de novo in a court of general

criminal jurisdiction if convicted, the second court is not bound by the rule in

Pearce, inasmuch as the potential for vindictiveness and inclination to deter is not

present. Colten v. Kentucky, 407 U.S. 104 (1972). But see Blackledge v. Perry, 417

U.S. 21 (1974), discussed supra, p. 1761. 114 An intervening conviction on other charges for acts committed prior to the

first sentencing may justify imposition of an increased sentence following a second

trial. Wasman v. United States, 468 U.S. 559 (1984). 115 Chaffin v. Stynchcombe, 412 U.S. 17 (1973). Justices Stewart, Brennan, and

Marshall thought the principle was applicable to jury sentencing and that prophylactic limitations appropriate to the problem should be developed. Id. at 35, 38. Justice Douglas dissented on other grounds. Id. at 35. The Pearce presumption that an

increased, judge-imposed second sentence represents vindictiveness also is inapplicable if the second trial came about because the trial judge herself concluded that

a retrial was necessary due to prosecutorial misconduct before the jury in the first

trial. Texas v. McCullough, 475 U.S. 134 (1986). 116 Alabama v. Smith, 490 U.S. 794 (1989). 117Williams 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

It is a denial of due process for a judge to sentence a convicted

defendant on retrial to a longer sentence than he received after the

first trial if the object of the sentence is to punish the defendant

for having successfully appealed his first conviction or to discourage similar appeals by others. 113 If the judge does impose a longer

sentence the second time, he must justify it on the record by showing, for example, the existence of new information meriting a

longer sentence. 114

Because the possibility of vindictiveness in resentencing is de

minimis when it is the jury that sentences, Pearce’s requirement

that a judge resentencing on a subsequent trial must justify a more

severe sentence is inapplicable to jury sentencing, at least in the

absence of a showing that the jury knew of the prior vacated sentence. The Court concluded that the possibility of vindictiveness

was so low because normally the jury would not know of the result

of the prior trial nor the sentence imposed, nor would it feel either

the personal or institutional interests of judges leading to efforts to

discourage the seeking of new trials. 115 The presumption of vindictiveness is also inapplicable if the first sentence was imposed following a guilty plea. Here the Court reasoned that a trial may well

afford the court insights into the nature of the crime and the character of the defendant that were not available following the initial

guilty plea. 116

Due process does not impose any limitation upon the sentence

that a legislature may affix to any offense; that function is in the

Eighth Amendment. 117
AMENDMENT 14—RIGHTS GUARANTEED 1769

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). 118Pate v. Robinson, 383 U.S. 375, 378 (1966) (citing Bishop v. United States,

350 U.S. 961 (1956)). 119 Id. For treatment of the circumstances when a trial court should inquire into

the mental competency of the defendant, see Drope v. Missouri, 420 U.S. 162 (1975).

Also, an indigent who makes a preliminary showing that his sanity at the time of

his offense will be a substantial factor in his trial is entitled to a court-appointed

psychiatrist to assist in presenting the defense. Ake v. Oklahoma, 470 U.S. 68

(1985). 120Medina v. California, 112 S. Ct. 2572 (1992). 121 Jackson v. Indiana, 406 U.S. 715 (1972). 122 Jones v. United States, 463 U.S. 354 (1983). The fact that the affirmative

defense of insanity need only be established by a preponderance of the evidence,

while civil commitment requires the higher standard of clear and convincing evidence, does not render the former invalid; proof beyond a reasonable doubt of commission of a criminal act establishes dangerousness justifying confinement and

eliminates the risk of confinement for mere idiosyncratic behavior. 123 463 U.S. at 368.

The Problem of the Incompetent or Insane Defendant or

Convict.—It is a denial of due process to try or sentence a defendant who is insane or incompetent to stand trial. 118 When it becomes evident during the trial that a defendant is or has become

insane, or incompetent to stand trial, the court on its own initiative

must conduct a hearing on the issue. 119 What the state must do

is to provide the defendant with a chance to prove that he is incompetent to stand trial; there is no further constitutional requirement

that the state assume the burden of proving the defendant competent. Due process is not offended, therefore, by a statutory presumption that a criminal defendant is competent to stand trial, or

by a requirement that the defendant bear the burden of proving incompetence by a preponderance of the evidence. 120 When a State

determines that a person charged with a criminal offense is incompetent to stand trial he cannot be committed indefinitely for that

reason. The court’s power is to commit him to a period no longer

than is necessary to determine whether there is a substantial probability that he will attain his capacity in the foreseeable future. If

it is determined that this is not the case, then the State must either release the defendant or institute the customary civil commitment proceeding that would be required to commit any other citizen. 121

Commitment to a mental hospital of a criminal defendant acquitted by reason of insanity does not offend due process, and the

period of confinement may extend beyond the period for which the

person could have been sentenced if convicted. 122 The purpose of

the confinement is not punishment, but treatment, and the Court

explained that the length of a possible criminal sentence ‘‘therefore

is irrelevant to the purposes of . . . commitment.’’ 123 Thus, the in-
1770 AMENDMENT 14—RIGHTS GUARANTEED

124 Id. at 370. 125Foucha v. Louisiana, 112 S. Ct. 1780 (1992). 126 477 U.S. 399 (1986). 127There 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. 128McKane 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). 129Griffin 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). 130The 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,

sanity acquittee may be confined for treatment ‘‘until such time as

he has regained his sanity or is no longer a danger to himself or

society.’’ 124 It follows, however, that a state may not indefinitely

confine an insanity acquittee who is no longer mentally ill but who

has an untreatable personality disorder that may lead to criminal

conduct. 125

The Court held in Ford v. Wainwright that the Eighth Amendment prohibits the state from carrying out the death penalty on an

individual who is insane, and that properly raised issues of preexecution sanity must be determined in a proceeding satisfying the

minimum requirements of due process. 126 Those minimum standards are not met when the decision on sanity is left to the unfettered discretion of the governor; rather, due process requires the

opportunity to be heard before an impartial officer or board. 127

Corrective Process: Appeals and Other Remedies.—‘‘An

appeal from a judgment of conviction is not a matter of absolute

right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review.’’ 128 This

holding has been recently reaffirmed 129 although the Court has

also held that when a State does provide appellate process it may

not so condition the privilege as to deny it irrationally to some persons, such as indigents. 130 But it is not the case that a State is
AMENDMENT 14—RIGHTS GUARANTEED 1771

which would enable them adequately to prosecute appeals from convictions. See

infra, pp. 1916–20. 131 237 U.S. 309, 335 (1915). 132Moore v. Dempsey, 261, U.S. 86, 90, 91 (1923); Mooney v. Holohan, 294 U.S.

103, 113 (1935); New York ex rel. Whitman v. Wilson, 318, U.S. 688, 690 (1943);

Young v. Ragan, 337 U.S. 235, 238–39 (1949). 133 Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945). 134 Carter v. Illinois, 329 U.S. 173, 175–76 (1946). 135Supra, pp. 811–12. Note that in Case v. Nebraska, 381 U.S. 336 (1965), the

Court had taken for review a case which raised the issue whether a State could simply omit any corrective process for hearing and determining claims of federal confree to have no corrective process at all in which defendants may

pursue remedies for federal constitutional violations. In Frank v.

Mangum, 131 the Court asserted that a conviction obtained in a

mob-dominated trial was contrary to due process: ‘‘if the State, supplying no corrective process, carries into execution a judgment of

death or imprisonment based upon a verdict thus produced by mob

domination, the State deprives the accused of his life or liberty

without due process of law.’’ Consequently, it has been stated numerous times that the absence of some form of corrective process

when the convicted defendant alleges a federal constitutional violation contravenes the Fourteenth Amendment, 132 and it has been

held that to burden this process, such as limiting the right to petition for habeas corpus, is to deny the convicted defendant his constitutional rights. 133

The mode by which federal constitutional rights are to be vindicated after conviction is for the government concerned to determine. ‘‘Wide discretion must be left to the States for the manner

of adjudicating a claim that a conviction is unconstitutional. States

are free to devise their own systems of review in criminal cases. A

State may decide whether to have direct appeals in such cases, and

if so under what circumstances. . . . In respecting the duty laid

upon them . . . States have a wide choice of remedies. A State may

provide that the protection of rights granted by the Federal Constitution be sought through the writ of habeas corpus or coram

nobis. It may use each of these ancient writs in its common law

scope, or it may put them to new uses; or it may afford remedy by

a simple motion brought either in the court of original conviction

or at a place of detention. . . . So long as the rights under the United States Constitution may be pursued, it is for a State and not

for this Court to define the mode by which they may be vindicated.’’ 134 If a State provides a mode of redress, a defendant must

first exhaust that mode, and if unsuccessful may seek relief in federal court; if there is no adquate remedy in state court, the defendant may petition a federal court for relief through a writ of habeas

corpus. 135
1772 AMENDMENT 14—RIGHTS GUARANTEED

stitutional violations, but it dismissed the case when the State in the interim enacted provisions for such process. 136Frank v. Mangum, 237 U.S. 309 (1915). 137 261 U.S. 86 (1923). 138 297 U.S. 278 (1936). 139 Ruffin v. Commonwealth, 62 Va. 790, 796 (1871). 140 Cf. In re Bonner, 151 U.S. 242 (1894). 141Price v. Johnston, 334 U.S. 266, 285 (1948). 142 ‘‘There is no iron curtain drawn between the Constitution and the prisons

of this country.’’ Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974).

When appellate or other corrective process is made available,

inasmuch as it is no less a part of the process of law under which

a defendant is held in custody, it becomes subject to scrutiny for

any alleged unconstitutional deprivation of life or liberty. At first,

the Court seemed content to assume that when a state appellate

process formally appeared to be sufficient to correct constitutional

errors committed by the trial court, the conclusion by the appellate

court that the trial court’s sentence of execution should be affirmed

was ample assurance that life would not be forfeited without due

process of law. 136 But in Moore v. Dempsey, 137 while insisting that

it was not departing from precedent, the Court directed a federal

district court in which petitioners had sought a writ of habeas corpus to make an independent investigation of the facts alleged by

the petitioners—mob domination of their trial—notwithstanding

that the state appellate court had ruled against the legal sufficiency of these same allegations. Indubitably, Moore marked the

abandonment of the Supreme Court’s deference, founded upon considerations of comity, to decisions of state appellate tribunals on issues of constitutionality, and the proclamation of its intention no

longer to treat as virtually conclusive pronouncements by the latter

that proceedings in a trial court were fair, an abandonment soon

made even clearer in Brown v. Mississippi 138 and now taken for

granted.

Rights of Prisoners.—Until relatively recently the view prevailed that a prisoner ‘‘has, as a consequence of his crime, not only

forfeited his liberty, but all his personal rights except those which

the law in its humanity accords to him. He is for the time being

the slave of the state.’’ 139 This view is not now the law, and may

never have been wholly correct. 140 In 1948 the Court declared that

‘‘[l]awful incarceration brings about the necessary withdrawal or

limitation of many privileges and rights’’; 141 ‘‘many,’’ indicated less

than ‘‘all,’’ and it was clear that the due process and equal protection clauses to some extent do apply to prisoners. 142 More direct

acknowledgment of constitutional protection came in 1972:

‘‘[f]ederal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons,’ which include prisoners. We are
AMENDMENT 14—RIGHTS GUARANTEED 1773

143 Cruz v. Beto, 405 U.S. 319, 321 (1972). See also Procunier v. Martinez, 416

U.S. 396, 404–05 (1974) (invalidating state prison mail censorship regulations). 144 Bell v. Wolfish, 441 U.S. 520, 545–548, 551, 555, 562 (1979) (federal prison);

Rhodes v. Chapman, 452 U.S. 337, 347, 351–352 (1981). 145 Bell v. Wolfish, 441 U.S. 520 (1979). Persons not yet convicted of a crime

may be detained by government upon the appropriate determination of probable

cause and the detention may be effectuated through subjection of the prisoner to

the restrictions and conditions of the detention facility. But a detainee may not be

punished prior to an adjudication of guilt in accordance with due process of law.

Therefore, unconvicted detainees may not be subjected to conditions and restrictions

that amount to punishment. However, the Court limited its concept of punishment

to practices intentionally inflicted by prison authorities and to practices which were

arbitrary or purposeless and unrelated to legitimate institutional objectives. 146Supra, pp. 1497–99. 147 E.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Baxter v. Palmigiano, 425

U.S. 308 (1976); Vitek v. Jones, 445 U.S. 480 (1980); Washington v. Harper, 494

U.S. 210 (1990) (prison inmate has liberty interest in avoiding the unwanted administration of antipsychotic drugs). 148 E.g., Procunier v. Martinez, 416 U.S. 396 (1974); Jones v. North Carolina

Prisoners’ Labor Union, 433 U.S. 119 (1977). On religious practices and ceremonies,

see Cooper v. Pate, 378 U.S. 546 (1964); Cruz v. Beto, 405 U.S. 319 (1972). 149Lee v. Washington, 390 U.S. 333 (1968). 150 Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945).

Prisoners must have reasonable access to a law library or to persons trained in the

law. Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817 (1978).

not unmindful that prison officials must be accorded latitude in the

administration of prison affairs, and that prisoners necessarily are

subject to appropriate rules and regulations. But persons in prison,

like other individuals, have the right to petition the Government

for redress of grievances. . . .’’ 143 However, while the Court affirmed that federal courts have the responsibility to scrutinize prison practices alleged to violate the Constitution, at the same time

concerns of federalism and of judicial restraint caused the Court to

emphasize the necessity of deference to the judgments of prison officials and others with responsibility for administering such systems. 144

Save for challenges to conditions of confinement of pretrial detainees, 145 the Court has generally treated challenges to prison

conditions as a whole under the cruel and unusual punishments

clause of the Eighth Amendment, 146 and challenges to particular

incidents and practices under the due process clause 147 as well as

under more specific provisions, such as the First Amendment

speech and religion clauses. 148 Prior to formulating its current approach, the Court recognized several rights of prisoners. Prisoners

have a right to be free of racial segregation in prisons, except for

the necessities of prison security and discipline. 149 They have the

right to petition for redress of grievances, which includes access to

the courts for purposes of presenting their complaints, 150 and to

bring actions in federal courts to recover for damages wrongfully
1774 AMENDMENT 14—RIGHTS GUARANTEED

151 Haines v. Kerner, 404 U.S. 519 (1972); Preiser v. Rodriguez, 411 U.S. 475

(1973).

152 482 U.S. 78 (1987) (upholding a Missouri rule barring inmate-to-inmate correspondence, but striking down a prohibition on inmate marriages absent compelling reason such as pregnancy or birth of a child).

153 482 U.S. at 89.

154 Id. at 91.

155 Hudson v. Palmer, 468 U.S. 517, 526 (1984); Block v. Rutherford, 468 U.S.

576 (1984) (holding also that prison security needs support a rule prohibiting pretrial detainees contact visits with spouses, children, relatives, and friends).

156 Hudson v. Palmer, 468 U.S. 517, 530 (1984).

157 Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that state tort law provided adequate postdeprivation remedies). But see Zinermon v. Burch, 494 U.S. 113

(1990) (availability of postdeprivation remedy is inadequate when deprivation is

foreseeable, predeprivation process was possible, and official conduct was not ‘‘unauthorized’’).

done them by prison administrators. 151 And they have a right, circumscribed by legitimate prison administration considerations, to

fair and regular treatment during their incarceration.

In Turner v. Safley, 152 the Court announced a general standard for measuring prisoners’ claims of deprivation of constitutional

rights. ‘‘[W]hen a regulation impinges on inmates’ constitutional

rights, the regulation is valid if it is reasonably related to legitimate penological interests.’’ 153 Several considerations, the Court

indicated, are appropriate in determining reasonableness of a prison regulation. First, there must be a rational relation to a legitimate, content-neutral objective, such as prison security, broadly defined. Availability of other avenues for exercise of the inmate right

suggests reasonableness. A further indicium of reasonableness is

present if accommodation would have a negative effect on liberty

or safety of guards or other inmates. On the other hand, an alternative to regulation ‘‘that fully accommodated the prisoner’s rights

at de minimis cost to valid penological interests’’ suggests

unreasonableness. 154

Fourth Amendment protection is incompatible with ‘‘the concept of incarceration and the needs and objectives of penal institutions,’’ hence a prisoner has no reasonable expectation of privacy in

his prison cell protecting him from ‘‘shakedown’’ searches designed

to root out weapons, drugs, and other contraband. 155 Avenues of

redress ‘‘for calculated harassment unrelated to prison needs’’ are

not totally blocked, the Court indicated; inmates may still seek protection in the Eighth Amendment or in state tort law. 156 Existence

of ‘‘a meaningful postdeprivation remedy’’ for unauthorized, intentional deprivation of an inmate’s property by prison personnel protects the inmate’s due process rights. 157 Due process is not impli-
AMENDMENT 14—RIGHTS GUARANTEED 1775

158Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344

(1986). 159 418 U.S. 539 (1974). 160 Id. at 557. This analysis, of course tracks the interest analysis discussed

supra, pp. 1723–32. 161 However, the Court later ruled, reasons for denying an inmate’s request to

call witnesses need not be disclosed until the issue is raised in court. Ponte v. Real,

471 U.S. 491 (1985). 162 Id. at 418 U.S., 561–72. The Court continues to adhere to its refusal to require appointment of counsel. Vitek v. Jones, 445 U.S. 480, 496–97 (1980), and id.

at 497–500 (Justice Powell concurring); Baxter v. Palmigiano, 425 U.S. 308 (1976). 163Superintendent v. Hill, 472 U.S. 445, 454, 457 (1985).

cated at all by negligent deprivation of life, liberty, or property by

prison officials. 158

In Wolff v. McDonnell, 159 the Court promulgated due process

standards to govern the imposition of discipline upon prisoners.

Due process applies, but since prison disciplinary proceedings are

not part of a criminal prosecution the full panoply of rights of a defendant is not available. Rather, the analysis must proceed on a

basis of identifying the interest in ‘‘liberty’’ which the clause protects.

Where the state provides for good-time credit or other privileges and further provides for forfeiture of these privileges only for

serious misconduct, the interest of the prisoner in this degree of

‘‘liberty’’ entitles him to those minimum procedures appropriate

under the circumstances. 160 What the minimum procedures consist

of is to be determined by balancing the prisoner’s interest against

the valid interest of the prison in maintaining security and order

in the institution, in protecting guards and prisoners against retaliation by other prisoners, and in reducing prison tensions. The

Court held in Wolff that the prison must afford the subject of a disciplinary proceeding advance written notice of the claimed violation

and a written statement of the factfindings as to the evidence relied upon and the reasons for the action taken; also, the inmate

should be allowed to call witnesses and present documentary evidence in defense when permitting him to do so will not hazard the

institution’s interests. 161 Confrontation and cross-examination of

adverse witnesses is not required inasmuch as these would no

doubt hazard valid institutional interests. Ordinarily, an inmate

has no right to representation by retained or appointed counsel. Finally, only a partial right to an impartial tribunal was recognized,

the Court ruling that limitations imposed on the discretion of a

committee of prison officials sufficed for this purpose. 162 Revocation of good time credits, the Court later ruled, must be supported

by ‘‘some evidence in the record,’’ but an amount that ‘‘might be

characterized as meager’’ is constitutionally sufficient. 163
1776 AMENDMENT 14—RIGHTS GUARANTEED

164Meacham v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236

(1976). 165Olim v. Wakinekona, 461 U.S. 238 (1983). 166 Vitek v. Jones, 445 U.S. 480 (1980). 167 494 U.S. 210 (1990).

Determination whether due process requires a hearing before

a prisoner is transferred from one institution to another requires

a close analysis of the applicable statutes and regulations as well

as a consideration of the particular harm suffered by the transferee. On the one hand, the Court found that no hearing need be

held prior to the transfer from one prison to another prison in

which the conditions were substantially less favorable. Since the

State had not conferred any right to remain in the facility to which

the prisoner was first assigned, defeasible upon the commission of

acts for which transfer is a punishment, prison officials had unfettered discretion to transfer any prisoner for any reason or for no

reason at all; consequently, there was nothing to hold a hearing

about. 164 The same principles govern interstate prison transfers. 165 On the other hand, transfer of a prisoner to a mental hospital pursuant to a statute authorizing transfer if the inmate suffers from a ‘‘mental disease or defect’’ must be preceded by a hearing for two alternative reasons. First, the statute gave the inmate

a liberty interest since it presumed he would not be moved absent

a finding he was suffering from a mental disease or defect. Second,

unlike transfers from one prison to another, transfer to a mental

institution was not within the range of confinement covered by the

prisoner’s sentence, and, moreover, imposed a stigma constituting

a deprivation of a liberty interest. 166

What kind of a hearing is required before a state may force a

mentally ill prisoner to take antipsychotic drugs against his will

was at issue in Washington v. Harper. 167 There the Court held

that a judicial hearing was not required. Instead, the inmate’s substantive liberty interest (derived from the Due Process Clause as

well as from state law) was adequately protected by an administrative hearing before independent medical professionals, at which

hearing the inmate has the right to a lay advisor but not an attorney.

Probation and Parole.—Sometimes convicted defendants are

not sentenced to jail, but instead are placed on probation subject

to incarceration upon violation of the conditions which are imposed;

others who are jailed may subsequently qualify for release on parole before completing their sentence, and are subject to

reincarceration upon violation of imposed conditions. Because both

of these dispositions are statutory privileges granted by the govern-
AMENDMENT 14—RIGHTS GUARANTEED 1777

168 Ughbanks v. Armstrong, 208 U.S. 481 (1908), held that parole is not a constitutional right but instead is a ‘‘present’’ from government to the prisoner. In

Escoe v. Zerbst, 295 U.S. 490 (1935), the Court’s premise was that as a matter of

grace the parolee was being granted a privilege and that he should neither expect

nor seek due process. Then-Judge Burger in Hyser v. Reed, 318 F. 2d 225 (D.C.

Cir.), cert. denied, 375 U.S. 957 (1963), reasoned that due process was inapplicable

because the parole board’s function was to assist the prisoner’s rehabilitation and

restoration to society and that there was no adversary relationship between the

board and the parolee. 169 389 U.S. 128 (1967). 170 408 U.S. 471 (1972). 171 Id. at 480, 482. 172 Id. at 483–84.

mental authority, 168 it was long assumed that the administrators

of the systems did not have to accord procedural due process either

in the granting stage or in the revocation stage. Now, both granting and revocation are subject to due process analysis, although the

results tend to be disparate. Thus, in Mempa v. Rhay, 169 the trial

judge had deferred sentencing and placed the convicted defendant

on probation; when facts subsequently developed which indicated a

violation of the conditions of probation, he was summoned and

summarily sentenced to prison. The Court held that he had been

entitled to counsel at the deferred sentencing hearing.

In Morrissey v. Brewer 170 a unanimous Court held that parole

revocations must be accompanied by the usual due process hearing

and notice requirements. ‘‘[T]he revocation of parole is not part of

a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocation

. . . [But] the liberty of a parolee, although indeterminate, includes

many of the core values of unqualified liberty and its termination

inflicts a ‘grievous loss’ on the parolee and often on others. It is

hardly useful any longer to try to deal with this problem in terms

of whether the parolee’s liberty is a ‘right’ or a ‘privilege.’ By whatever name, the liberty is valuable and must be seen as within the

protection of the Fourteenth Amendment. Its termination calls for

some orderly process, however informal.’’ 171 What process is due,

then, turned upon the State’s interests. Its principal interest was

that having once convicted a defendant, imprisoned him, and released him for rehabilitation purposes at some risk, it should ‘‘be

able to return the individual to imprisonment without the burden

of a new adversary criminal trial if in fact he has failed to abide

by the conditions of his parole.’’ But the State has no interest in

revoking parole without some informal procedural guarantees, inasmuch as this will not interfere with its reasonable interest. 172

Minimal due process, the Court held, requires that at both

stages of the revocation process—the arrest of the parolee and the
1778 AMENDMENT 14—RIGHTS GUARANTEED

173 Id. at 484–87. 174 Id. at 487–89. 175 Black v. Romano, 471 U.S. 606 (1985). 176 Bearden v. Georgia, 461 U.S. 660, 672 (1983).

formal revocation—the parolee is entitled to certain rights. Promptly following arrest of the parolee, there should be an informal hearing to determine whether reasonable grounds exist for revocation

of parole; this preliminary hearing should be conducted at or reasonably near the place of the alleged parole violation or arrest and

as promptly as convenient after arrest while information is fresh

and sources are available, and should be conducted by someone not

directly involved in the case, though he need not be a judicial officer. The parolee should be given adequate notice that the hearing

will take place and what violations are alleged, he should be able

to appear and speak in his own behalf and produce other evidence,

and he should be allowed to examine those who have given adverse

evidence against him unless it is determined that the identity of

such informant should not be revealed. Also, the hearing officer

should prepare a digest of the hearing and base his decision upon

the evidence adduced at the hearing. 173

Prior to the final decision on revocation, there should be a

more formal revocation hearing at which there would be a final

evaluation of any contested relevant facts and consideration whether the facts as determined warrant revocation. The hearing must

take place within a reasonable time after the parolee is taken into

custody and he must be enabled to controvert the allegations or

offer evidence in mitigation. The procedural details of such hearings are for the States to develop but the Court specified minimum

requirements of due process. ‘‘They include (a) written notice of the

claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to

present witnesses and documentary evidence; (d) the right to

confront and cross-examine adverse witnesses (unless the hearing

officer specifically finds good cause for not allowing confrontation);

(e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.’’ 174 Ordinarily

the written statement need not indicate that the sentencing court

or review board considered alternatives to incarceration, 175 but a

sentencing court must consider such alternatives if the probation

violation consists of the failure of an indigent probationer, through

no fault of his own, to pay a fine or restitution. 176
AMENDMENT 14—RIGHTS GUARANTEED 1779

177Gagnon v. Scarpelli, 411 U.S. 778 (1973). 178 442 U.S. 1 (1979). Justice Powell thought that creation of a parole system

did create a legitimate expectancy of fair procedure protected by due process, but,

save in one respect, he agreed with the Court that the procedure followed was adequate. Id. at 18. Justices Marshall, Brennan, and Stevens argued in dissent that

the Court’s analysis of the liberty interest was faulty and that due process required

more than the board provided. Id. at 22. 179Following 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.

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. 177

With respect to the granting of parole, the Court’s analysis of

the due process clause’s meaning in Greenholtz v. Nebraska Penal

Inmates 178 is much more problematical. Rejected was the theory

that the mere establishment of the possibility of parole was sufficient to create a liberty interest entitling any prisoner meeting the

general standards of eligibility to a due process protected expectation of being dealt with in any particular way. On the other hand,

the Court did recognize in the particular statute before it the creation of some expectancy of release that was entitled to some measure of constitutional protection, while cautioning that only by a

case-by-case analysis could it be said whether other parole statutes

similarly created such expectancy. 179 In any event, the Court considered the nature of the decisions that parole authorities must

make to hold that the full panoply of due process guarantees is not

required; procedures designed to elicit specific facts are inappropriate under the circumstances. Rather, minimizing the risk of error

is the prime consideration, and that goal was achieved by the

board’s largely informal methods; the lower court erred, therefore,

in imposing requirements of formal hearings, notice, and specification of particular evidence in the record. The inmate was afforded

an opportunity to be heard and when parole was denied he was informed in what respects he fell short of qualifying. That afforded

the process that was due.

Where, however, government by its statutes and regulations

creates no obligation of the pardoning authority and thus creates
1780 AMENDMENT 14—RIGHTS GUARANTEED

180 Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); Jago v. Van

Curen, 454 U.S. 14 (1981). The former case involved not parole but commutation

of a life sentence, commutation being mecessary to become eligible for parole. The

statute gave the Board total discretion to commute, but in at least 75% of the cases

prisoner received a favorable action and virtually all of the prisoners who had their

sentences commuted were promptly paroled. In Van Curen, the Court made express

what had been implicit in Dumschat; the ‘‘mutually explicit understandings’’ concept

under which some property interests are found protected does not apply to liberty

interests. Van Curen is also interesting because there the parole board had granted

the petition for parole but within days revoked it before the prisoner was released,

upon being told that he had lied at the hearing before the board. 181For analysis of the state laws as well as application of constitutional principles to juveniles, see SAMUEL M. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE SYSTEM (2d ed. 1989). 182 In re Gault, 387 U.S. 1, 12–29 (1967). 183 387 U.S. 1 (1967).

no legitimate expectancy of release, the prisoner may not by showing the favorable exercise of the authority in the great number of

cases demonstrate such a legitimate expectancy. The mere existence of purely discretionary authority and the frequent exercise of

it creates no entitlement. 180

The Problem of the Juvenile Offender.—All of the States of

the Union and the District of Columbia make provision for dealing

with juvenile offenders outside of the criminal system for adult offenders. 181 These juvenile justice systems apply both to offenses

that would be criminal if committed by an adult and to delinquent

behavior not recognizable under laws dealing with adults, such as

habitual truancy, deportment endangering the morals or health of

the juvenile or others, or disobedience making the juvenile uncontrollable by his parents. The reforms of the early part of this century provided not only for segregating juveniles from adult offenders in the adjudication, detention, and correctional facilities, but

they also dispensed with the substantive and procedural rules surrounding criminal trials which were mandated by due process. Justification for this abandonment of constitutional guarantees was offered by describing juvenile courts as civil not criminal and as not

dispensing criminal punishment, and offering the theory that the

state was acting as parens patriae for the juvenile offender and was

in no sense his adversary. 182 Disillusionment with the results of

juvenile reforms coupled with judicial emphasis on constitutional

protection of the accused led in the 1960s to a substantial restriction of these elements of juvenile jurisprudence.

After tracing in much detail this history of juvenile courts, the

Court held in In re Gault 183 that the application of due process to

juvenile proceedings would not endanger the good intentions vested

in the system nor diminish the features of the system which were

deemed desirable—emphasis upon rehabilitation rather than pun-
AMENDMENT 14—RIGHTS GUARANTEED 1781

184 Id. at 27–28. 185 Id. at 31–35. Justice Harlan concurred in part and dissented in part, id. at

65, agreeing on the applicability of due process but disagreeing with the standards

of the Court. Justice Stewart dissented wholly, arguing that the application of procedures developed for adversary criminal proceedings to juvenile proceedings would

endanger their objectives and contending that the decision was a backward step toward undoing the reforms instituted in the past. Id. at 78. 186Kent v. United States, 383 U.S. 541 (1966), noted on this point in In re

Gault, 387 U.S. 1, 30–31 (1967).

ishment, a measure of informality, avoidance of the stigma of

criminal conviction, the low visibility of the process—but that the

consequences of the absence of due process standards made their

application necessary. ‘‘Ultimately, however, we confront the reality

of that portion of the juvenile court process with which we deal in

this case. A boy is charged with misconduct. The boy is committed

to an institution where he may be restrained of liberty for years.

It is of no constitutional consequence—and of limited practical

meaning—that the institution to which he is committed is called an

Industrial School. The fact of the matter is that, however euphemistic the title, a ‘receiving home’ or an ‘industrial school’ for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes ‘a building

with whitewashed walls, regimented routine and institutional

hours. . . .’ Instead of mother and father and sisters and brothers

and friends and classmates, his world is peopled by guards,

custodians, state employees, and ‘delinquents’ confined with him

for anything from waywardness to rape and homicide. ‘‘In view of

this, it would be extraordinary if our Constitution did not require

the procedural regularity and the exercise of care implied in the

phrase ‘due process.’ Under our Constitution, the condition of being

a boy does not justify a kangaroo court.’’ 184

Thus, the Court in Gault required that notice of charges be

given in time for the juvenile to prepare a defense, required a hearing in which the juvenile could be represented by retained or appointed counsel, required observance of the rights of confrontation

and cross-examination, and required that the juvenile be protected

against self-incrimination. 185 It did not pass upon the right of appeal or the failure to make transcripts of hearings. Earlier, the

Court had held that before a juvenile could be ‘‘waived’’ to an adult

court for trial, there had to be a hearing and findings of reasons,

a result based on statutory interpretation but apparently

constitutionalized in Gault. 186 Subsequently, it was held that the

‘‘essentials of due process and fair treatment’’ required that a juvenile could be adjudged delinquent only on evidence beyond a reasonable doubt when the offense charged would be a crime if com-
1782 AMENDMENT 14—RIGHTS GUARANTEED

187 In re Winship, 397 U.S. 358 (1970). Chief Justice Burger and Justice Stewart

dissented, following essentially the Stewart reasoning in Gault. ‘‘The Court’s opinion

today rests entirely on the assumption that all juvenile proceedings are ‘criminal

prosecutions,’ hence subject to constitutional limitation. . . . What the juvenile court

systems need is not more but less of the trappings of legal procedure and judicial

formalism; the juvenile system requires breathing room and flexibility in order to

survive, if it can survive the repeated assaults from this Court.’’ Id. at 375, 376. Justice Black dissented because he did not think the reasonable doubt standard a constitutional requirement at all. Id. at 377.

188McKeiver v. Pennsylvania, 403 U.S. 528 (1971). No opinion was concurred

in by a majority of the Justices. Justice Blackmun’s opinion of the Court, which was

joined by Chief Justice Burger and Justices Stewart and White, reasoned that a juvenile proceeding was not ‘‘a criminal prosecution’’ within the terms of the Sixth

Amendment, so that jury trials were not automatically required; instead, the prior

cases had proceeded on a ‘‘fundamental fairness’’ approach and in that regard a jury

was not a necessary component of fair factfinding and its use would have serious

repercussions on the rehabilitative and protection functions of the juvenile court.

Justice White also submitted a brief concurrence emphasizing the differences between adult criminal trials and juvenile adjudications. Id. at 551. Justice Brennan

concurred in one case and dissented in another because in his view open proceedings

would operate to protect juveniles from oppression in much the same way as a jury

would. Id. at 553. Justice Harlan concurred because he did not believe jury trials

were constitutionally mandated in state courts. Id. at 557. Justices Douglas, Black,

and Marshall dissented. Id. at 557.

189Fare v. Michael C., 442 U.S. 707, 725 (1979).

190 New Jersey v. T.L.O., 469 U.S. 325 (1985) (upholding the search of a student’s purse to determine whether the student possessed cigarettes in violation of

schoool rule; evidence of drug activity held admissible in a prosecution under the

juvenile laws).

mitted by an adult, 187 but still later the Court held that jury trials

were not constitutionally required in juvenile trials. 188

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-thecircumstances approach applicable to adults. That approach ‘‘permits—indeed it mandates—inquiry into all the circumstances surrounding the interrogation . . . includ[ing] evaluation of the juvenile’s age, experience, education, background, and intelligence, and

into whether he has the capacity to understand the warnings given

him. . . .’’ 189 In another case the Court ruled that, while the

Fourth Amendment applies to searches of students by public school

authorities, neither the warrant requirement nor the probable

cause standard is appropriate. 190 Instead, a simple reasonableness
AMENDMENT 14—RIGHTS GUARANTEED 1783

191This single rule, the Court explained, will permit school authorities ‘‘to regulate their conduct according to the dictates of reason and common sense.’’ 469 U.S.

at 343. Rejecting the suggestion of dissenting Justice Stevens, the Court was ‘‘unwilling to adopt a standard under which the legality of a search is dependent upon

a judge’s evaluation of the relative importance of various school rules.’’ Id. at n.9. 192 467 U.S. 253 (1984). 193See SAMUEL M. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE SYSTEM, ch. 4, ‘‘Waiver of Jurisdiction’’ (2d ed. 1989).

194 492 U.S. 361 (1989). 195Thompson v. Oklahoma, 487 U.S. 815 (1988). 196See analysis of Eighth Amendment principles, supra pp. 1491–92.

standard governs all searches of students’ persons and effects by

school authorities. 191

The Court ruled in Schall v. Martin 192 that preventive detention of juveniles does not offend due process when it serves the legitimate state purpose of protecting society and the juvenile from

potential consequences of pretrial crime, when the terms of confinement serve those legitimate purposes and are nonpunitive, and

when procedures provide sufficient protection against erroneous

and unnecessary detentions. A statute authorizing pretrial detention of accused juvenile delinquents on a finding of ‘‘serious risk’’

that the juvenile would commit crimes prior to trial, providing for

expedited hearings (the maximum possible detention was 17 days),

and guaranteeing a formal, adversarial probable cause hearing

within that period, was found to satisfy these requirements.

Each state has a procedure by which juveniles may be tried as

adults. 193 With the Court having clarified the consitutional requirements for imposition of capital punishment, it was only a matter of time before the Court would have to determine whether

states may subject juveniles to capital punishment. In Stanford v.

Kentucky, 194 the Court held that the Eighth Amendment does not

categorically prohibit imposition of the death penalty for individuals who commit crimes at age 16 or 17; earlier the Court had invalidated a statutory scheme permitting capital punishment for

crimes committed before age 16. 195 In weighing validity under the

Eighth Amendment, the Court has looked to state practice to determine whether a consensus against execution exists. 196

Still to be considered by the Court are such questions as the

substantive and procedural guarantees to be applied in proceedings

when the matter at issue is non-criminal delinquent behavior.

The Problem of Civil Commitment.—As is the case with juvenile offenders, several other classes of persons are subject to confinement by processes and in courts deemed civil rather than criminal. Within this category of ‘‘protective commitment’’ are involuntary commitments for treatment of insanity and other degrees of

mental incompetence, retardation, alcoholism, narcotics addiction,
1784 AMENDMENT 14—RIGHTS GUARANTEED

197Only 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). 198 422 U.S. 563 (1975). 199That is, the right to treatment of the involuntarily committed. Supra, pp.

1690–92. 200 422 U.S. at 576. 201 Id. at 576–77. The Court remanded to allow the trial court to determine

whether Donaldson should recover personally from his doctors and others for his

confinement, under standards formulated under 42 U.S.C. § 1983. See Wood v.

Strickland, 420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S. 232 (1974). 202O’Connor v. Donaldson, 422 U.S. 563, 573 (1975). 203Zinermon v. Burch, 494 U.S. 113 (1990).

sexual psychopathy, and the like. Inasmuch as the deprivation of

liberty is as severe as that experienced by juveniles adjudged delinquent, and in addition is accompanied with harm to reputation, it

is surprising that the Court has only recently dealt with the

issue. 197

In O’Connor v. Donaldson, 198 bypassing ‘‘the difficult issues of

constitutional law’’ raised by the lower courts’ resolution of the

case, 199 the Court held that ‘‘a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and

responsible family members or friends.’’ 200 The trial jury had found

that Donaldson was not dangerous to himself or to others, and the

Court ruled that he had been unconstitutionally confined. 201 Left

to resolution another day were such questions as ‘‘when, or by what

procedures, a mentally ill person may be confined by the State on

any of the grounds which, under contemporary statutes, are generally advanced to justify involuntary confinement of such a person—to prevent injury to the public, to ensure his own survival or

safety, or to alleviate or cure his illness’’ 202 and the right, if any,

to receive treatment for the confined person’s illness. To conform

to due process requirements, procedures for voluntary admission

should recognize the possibility that persons in need of treatment

may not be competent to give informed consent; this is not a situation where availability of a meaningful postdeprivation remedy can

cure the due process violation. 203

Procedurally, it is clear that an individual’s liberty interest in

being free from unjustifiable confinement and from the adverse social consequences of being labeled mentally ill requires government

to assume a greater share of the risk of error in proving the exist-
AMENDMENT 14—RIGHTS GUARANTEED 1785

204 Addington v. Texas, 441 U.S. 418 (1979). See also Vitek v. Jones, 445 U.S.

480 (1980) (transfer of prison inmate to mental hospital). 205 442 U.S. 584 (1979). See also Secretary of Public Welfare v. Institutionalized

Juveniles, 442 U.S. 640 (1979). 206 442 U.S. at 598–617. The dissenters agreed on this point. Id. at 626–37. 207 Id. at 617–20. The dissenters would have required a preconfinement hearing.

Id. at 637–38. 208 Id. at 617. The dissent would have mandated a formal postadmission hearing. Id. at 625–26.

ence of such illness as a precondition to confinement. Thus, the evidentiary standard of a preponderance, normally used in litigation

between private parties, is constitutionally inadequate in commitment proceedings. On the other hand, the criminal standard of beyond a reasonable doubt is not necessary because the state’s aim

is not punitive and because some or even much of the consequence

of an erroneous decision not to commit may fall upon the individual. Moreover, the criminal standard addresses an essentially factual question, whereas interpretative and predictive determinations

must also be made in reaching a conclusion on commitment. The

Court therefore imposed a standard of ‘‘clear and convincing’’ evidence. 204

Difficult questions of what due process may require in the context of commitment of allegedly mentally ill and mentally retarded

children by their parents or by the State when such children are

wards of the State were confronted in Parham v. J.R. 205 Under the

challenged laws there were no formal preadmission hearings, but

psychiatric and social workers did interview parents and children

and reached some form of independent determination that commitment was called for. The Court acknowledged the potential for

abuse but balanced this against such factors as the responsibility

of parents for the care and nurture of their children and the legal

presumption that parents usually act in behalf of their children’s

welfare, the independent role of medical professionals in deciding

to accept the children for admission, and the real possibility that

the institution of an adversary proceeding would both deter parents

from acting in good faith to institutionalize children needing such

care and interfere with the ability of parents to assist with the care

of institutionalized children. 206 Similarly, the same concerns, reflected in the statutory obligation of the State to care for children

in its custody, caused the Court to apply the same standards to involuntary commitment by the Government. 207 Left to future resolution was the question of the due process requirements for

postadmission review of the necessity for continued confinement. 208
1786 AMENDMENT 14—RIGHTS GUARANTEED

1Shelley v. Kraemer, 334 U.S. 1, 13 (1948). Similarly, the due process clause

of the Fifth Amendment, with its equal protection component, limits only federal

governmental action and not that of private parties, as is true of each of the provisions of the Bill of Rights. The scope and reach of the ‘‘state action’’ doctrine is thus

the same whether a State or the National Government is concerned. See CBS v.

Democratic Nat’l Comm., 412 U.S. 94 (1973). 2 Civil Rights Cases, 109 U.S. 3, 11 (1883). With regard to the principal issue

in this decision, the limitation of the state action requirement on Congress’ enforcement powers, see infra, pp. 1929–33. 3 Recently, however, because of broadening due process conceptions and the resulting litigation, issues of state action have been raised with respect to the due

process clause. See, e.g., Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974);

Flagg Bros. v. Brooks, 436 U.S. 149 (1978); Rendell-Baker v. Kohn, 457 U.S. 830

(1982); Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982); Blum v. Yaretsky, 457

U.S. 991 (1982). 4Terry v. Adams, 345 U.S. 461, 473 (1953) (concurring). The Justice was speaking of the state action requirement of the Fifteenth Amendment. The Nineteenth

and Twenty-sixth Amendments also hinge on state action; the Thirteenth Amendment, banning slavery and involuntary servitude, does not. 5 United States v. Raines, 362 U.S. 17, 25 (1960). A prime example is the statutory requirement of racially segregated schools condemned in Brown v. Board of

EQUAL PROTECTION OF THE LAWS

Scope and Application

State Action.—‘‘[T]he action inhibited by the first section of

the Fourteenth Amendment is only such action as may fairly be

said to be that of the States. That Amendment erects no shield

against merely private conduct, however discriminatory or wrongful.’’ 1 The Amendment by its express terms provides that ‘‘[n]o

State . . .’’ and ‘‘nor shall any State . . .’’ engage in the proscribed

conduct. ‘‘It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every

kind, which impairs the privileges and immunities of citizens of the

United States, or which injures them in life, liberty, or property

without due process of law, or which denies to any of them the

equal protection of the laws.’’ 2 While the state action doctrine is

equally applicable to denials of privileges or immunities, due process, and equal protection, it is actually only with the last great

right of the Fourteenth Amendment that the doctrine is invariably

associated. 3

‘‘The vital requirement is State responsibility,’’ Justice Frankfurter once wrote, ‘‘that somewhere, somehow, to some extent,

there be an infusion of conduct by officials, panoplied with State

power, into any scheme’’ to deny protected rights. 4 Certainly, state

legislation commanding a discriminatory result is state action condemned by the first section of the Fourteenth Amendment, and is

void. 5 But the difficulty for the Court has begun when the conduct
AMENDMENT 14—RIGHTS GUARANTEED 1787

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. 6 Ex parte Virginia, 100 U.S. 339, 346–47 (1880).

7Lugar 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).

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

denial of equal protection to private action that is no longer so significantly related to or brigaded with state action that the Amendment applies. The prohibitions of the Amendment ‘‘have reference

to actions of the political body denominated by a State, by whatever instruments or in whatever modes that action may be taken.

A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or

agents by whom its powers are exerted, shall deny to any person

within its jurisdiction the equal protection of the laws. Whoever, by

virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the

constitutional inhibition; and as he acts in the name and for the

State, and is clothed with the State’s power, his act is that of the

State.’’ 6

‘‘Careful adherence to the ‘state action’ requirement preserves

an area of individual freedom by limiting the reach of federal law

and federal judicial power. It also avoids imposing on the State, its

agencies or officials, responsibility for conduct for which they cannot fairly be blamed. A major consequence is to require the courts

to respect the limits of their own power as directed against state

governments and private interests. Whether this is good or bad policy, it is a fundamental fact of our political order.’’ 7 That the doc-
1788 AMENDMENT 14—RIGHTS GUARANTEED

8 ‘‘Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.’’ Burton v.

Wilmington Parking Auth., 365 U.S. 715, 722 (1961). 9 Brown v. Board of Education, 347 U.S. 483 (1954).

10 Infra, pp. 1843–47. 11 Compare Washington v. Seattle School Dist., 458 U.S. 457 (1982), with

Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527 (1982). 12Keyes 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).

trine serves certain values and disserves others is not a criticism

of it but a recognition that in formulating and applying the several

tests by which the presence of ‘‘state action’’ is discerned, 8 the

Court has considerable discretion and the weights of the opposing

values and interests will lead to substantially different applications

of the tests. Thus, following the Civil War, when the Court sought

to reassert federalism values, it imposed a rather rigid state action

standard. During the civil rights movement of the 1950s and 1960s,

when almost all state action contentions were raised in a racial

context, the Court generally found the presence of state action. As

it grew more sympathetic to federalism concerns in the late 1970s

and 1980s, the Court began to reassert a strengthened state action

doctrine, primarily but hardly exclusively in nonracial cases.

Operation of the state action doctrine was critical in determining whether school systems were segregated unconstitutionally by

race. The original Brown cases and subsequent ones arose in the

context of statutorily mandated separation of the races and occasioned therefore no controversy in finding state action. 9 The aftermath in the South involved not so much state action as the determination of the remedies necessary to achieve a unitary system. 10

But if racial segregation is not the result of state action in some

aspect, then its existence is not subject to constitutional remedy. 11

Distinguishing between the two situations has occasioned much

controversy.

Confronting in a case arising from Denver, Colorado, the issue

of a school system in which no statutory dual system had ever been

imposed, the Court restated the obvious principle that racial segregation caused by ‘‘intentionally segregative school board actions’’

is de jure and not de facto, just as if it had been mandated by statute. ‘‘[T]he differentiating factor between de jure segregation and

so-called de facto segregation . . . is purpose or intent to segregate.’’ 12 Where it is proved that a meaningful portion of a school

system is segregated as a result of official action, the official agency

must bear the burden of proving that other school segregation

within the system is adventitious and not the result of official action. It is not the responsibility of complainants to show that each
AMENDMENT 14—RIGHTS GUARANTEED 1789

13 Id. at 208–213. The continuing validity of the Keyes shifting-of-the-burden

principle, after Washington v. Davis, 426 U.S. 229 (1976), and Dayton Bd. of Educ.

v. Brinkman, 433 U.S. 406 (1977), was asserted in Columbus Bd. of Educ. v. Penick,

443 U.S. 449, 455–458 & n.7, 467–68 (1979), and Dayton Bd. of Educ. v. Brinkman,

443 U.S. 526, 540–42 (1979). 14 Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 458–61 (1979); Dayton Bd.

of Educ. v. Brinkman, 443 U.S. 526, 534–40 (1979). 15Milliken v. Bradley, 418 U.S. 717, 744–45 (1974). 16 Ex parte Virginia, 100 U.S. 339 (1880). Similarly, the acts of a state governor

are state actions, Cooper v. Aaron, 358 U.S. 1, 16–17 (1958); Sterling v. Constantin,

287 U.S. 378, 393 (1932), as are the acts of prosecuting attorneys, Mooney v.

Holohan, 294 U.S. 103, 112, 113 (1935), state and local election officials, United

States v. Classic, 313 U.S. 299 (1941), and law enforcement officials. Griffin v.

Maryland, 378 U.S. 130 (1964); Monroe v. Pape, 365 U.S. 167 (1961); Screws v.

United States, 325 U.S. 91 (1945). One need not be an employee of the State to act

school in a system is de jure segregated to be entitled to a systemwide desegregation plan. 13 Moreover, the Court has also apparently adopted a rule to the effect that if it can be proved that at

some time in the past a school board has purposefully maintained

a racially separated system, a continuing obligation to dismantle

that system can be said to have devolved upon the agency at that

earlier point so that its subsequent actions can be held to a standard of having promoted desegregation or of not having promoted it,

so that facially neutral or ambiguous school board policies can form

the basis for a judicial finding of intentional discrimination. 14

Different results, however, follow when inter-district segregation is an issue. Disregard of district lines is permissible by a federal court in formulating a desegregation plan only when it finds

an inter-district violation. ‘‘Before the boundaries of separate and

autonomous school districts may be set aside by consolidating the

separate units for remedial purposes by imposing a cross-district

remedy, it must first be shown that there has been a constitutional

violation within one district that produces a significant segregative

effect in another district. Specifically it must be shown that racially

discriminatory acts of the state or local school districts, or of a single school district, have been a substantive cause of inter-district

segregation.’’ 15 The de jure/de facto distinction is thus well established in school cases and is firmly grounded upon the ‘‘state action’’ language of the Fourteenth Amendment.

It has long been established that the actions of state officers

and agents are attributable to the State. Thus, application of a federal statute imposing a criminal penalty on a state judge who excluded African Americans from jury duty was upheld as within congressional power under the Fourteenth Amendment; the judge’s action constituted state action even though state law did not authorize him to select the jury in a racially discriminatory manner. 16
1790 AMENDMENT 14—RIGHTS GUARANTEED

‘‘under color of’’ state law; he may merely participate in an act with state officers.

United States v. Price, 383 U.S. 787 (1966). 17 118 U.S. 356 (1886). 18Screws v. United States, 325 U.S. 91 (1945); Williams v. United States, 341

U.S. 97 (1951); United States v. Price, 383 U.S. 787 (1966). See also United States

v. Raines, 362 U.S. 17, 25 (1960). As Justice Brandeis noted in Iowa-Des Moines

National Bank v. Bennett, 284 U.S. 239, 246 (1931), ‘‘acts done ‘by virtue of public

position under a State government . . . and . . . in the name and for the State’ . . .

are not to be treated as if they were the acts of private individuals, although in

doing them the official acted contrary to an express command of the state law.’’ Note

that for purposes of being amenable to suit in federal court, however, the immunity

of the States does not shield state officers who are alleged to be engaging in illegal

or unconstitutional action. Ex parte Young, 209 U.S. 123 (1908), supra, pp. 1537–

44. Cf. Screws v. United States, supra, 147–48. 19 United States v. Classic, 313 U.S. 299, 326 (1941). 20 Cf. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). 21Lombard 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. 22Griffin 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). 23 Examples already alluded to include Lombard v. Louisiana, 373 U.S. 267

(1963), in which certain officials had advocated continued segregation, Peterson v.

City of Greenville, 373 U.S. 244 (1963), in which there were segregation-requiring

ordinances and customs of separation, and Robinson v. Florida, 378 U.S. 153 (1964),

in which health regulations required separate restroom facilities in any establishment serving both races.

The fact that the ‘‘state action’’ category is not limited to situations

in which state law affirmatively authorizes discriminatory action

was made clearer in Yick Wo v. Hopkins, 17 in which the Court

found unconstitutional state action in the discriminatory administration of an ordinance fair and non-discriminatory on its face. Not

even the fact that the actions of the state agents are illegal under

state law makes the action nonattributable to the State for purposes of the Fourteenth Amendment. 18 ‘‘Misuse of power, possessed

by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken

‘under color of’ state law.’’ 19 When the denial of equal protection

is not commanded by law or by administrative regulation but is

nonetheless accomplished through police enforcement of ‘‘custom’’ 20

or through hortatory admonitions by public officials to private parties to act in a discriminatory manner, 21 the action is state action.

When a State clothes a private party with official authority, he

may not engage in conduct forbidden the State. 22

Beyond this point we enter the area in which the discriminatory intent is that of a private individual and the question is

whether a State has encouraged the effort or has impermissibly

aided it. 23 Of notable importance and a subject of controversy since
AMENDMENT 14—RIGHTS GUARANTEED 1791

24 334 U.S. 1 (1948). 25 Id. at 13–14. 26 Id. at 19. In Hurd v. Hodge, 334 U.S. 24 (1948), the Court outlawed judicial

enforcement of restrictive covenants in the District of Columbia as violative of civil

rights legislation and public policy. Barrows v. Jackson, 346 U.S. 249 (1953), held

that damage actions for violations of racially restrictive covenants would not be judicially entertained. 27 Rice v. Sioux City Memorial Park Cemetery, 245 Iowa 147, 60 N.W. 2d 110

(1953), aff’d by an equally divided Court, 348 U.S. 880 (1954), rehearing granted,

judgment vacated & certiorari dismissed, 349 U.S. 70 (1955); Black v. Cutter Laboratories, 351 U.S. 292 (1956). The central issue in the ‘‘sit-in’’ cases, whether state

enforcement of trespass laws at the behest of private parties acting on the basis of

it was decided is Shelley v. Kraemer. 24 There, property owners

brought suit to enforce a racially restrictive covenant, seeking to

enjoin the sale of a home by white sellers to black buyers. The covenants standing alone, Chief Justice Vinson said, violated no rights

protected by the Fourteenth Amendment. ‘‘So long as the purposes

of those agreements are effectuated by voluntary adherence to their

terms, it would appear clear that there has been no action by the

State and the provisions of the Amendment have not been violated.’’ However, that was not all. ‘‘These are cases in which the

purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements.’’ 25

Establishing that the precedents were to the effect that judicial action of state courts was state action, the Court continued to find

that judicial enforcement of these covenants was forbidden. ‘‘The

undisputed facts disclose that petitioners were willing purchasers

of properties upon which they desire to establish homes. The owners of the properties were willing sellers; and contracts of sale were

accordingly consummated. . . .’’

‘‘These are not cases . . . in which the States have merely abstained from action, leaving private individuals free to impose such

discriminations as they see fit. Rather, these are cases in which the

States have made available to such individuals the full coercive

power of government to deny to petitioners, on the grounds of race

or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the

grantors are willing to sell.’’ 26

Arguments about the scope of Shelley began immediately. Did

the rationale mean that no private decision to discriminate could

be effectuated in any manner by action of the State, as by enforcement of trespass laws or judicial enforcement of discrimination in

wills? Or did it rather forbid the action of the State in interfering

with the willingness of two private parties to deal with each other?

Disposition of several early cases possibly governed by Shelley left

this issue unanswered. 27 But the Court has experienced no dif-
1792 AMENDMENT 14—RIGHTS GUARANTEED

their own discriminatory motivations, was evaded by the Court, in finding some

other form of state action and reversing all convictions. Individual Justices did

elaborate, however. Compare Bell v. Maryland, 378 U.S. 226, 255–60 (1964) (opinion

of Justice Douglas), with id. at 326 (Justices Black, Harlan, and White dissenting). 28 In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and progeny, defamation actions based on common-law rules were found to implicate First Amendment rights and the Court imposed varying limiting rules on such rules of law. See

id. at 265 (finding state action). Similarly, in NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982), a civil lawsuit between private parties, the application of state

common-law rules to assess damages for actions in a boycott and picketing was

found to constitute state action. Id. at 916 n.51. 29 396 U.S. 435 (1970). The matter had previously been before the Court in

Evans v. Newton, 382 U.S. 296 (1966). 30 Id. at 445. Note the use of the same rationale in another context in Palmer

v. Thompson, 403 U.S. 217, 226 (1971). On a different result in the ‘‘Girard College’’

will case, see infra, p. 1689 n.14. 31 387 U.S. 369 (1967). The decision was 5-to–4, Justices Harlan, Black, Clark,

and Stewart dissenting. Id. at 387.

ficulty in finding that state court enforcement of common-law rules

in a way that has an impact upon speech and press rights is state

action and triggers the application of constitutional rules. 28 It may

be that the substantive rule that is being enforced is the dispositive

issue, rather than the mere existence of state action. Thus, in

Evans v. Abney, 29 a state court, asked to enforce a discriminatory

stipulation in a will that property devised to a city for use as a

public park should never be used by African Americans, ruled that

the city could not operate the park in a segregated fashion; instead

of striking the segregation requirement from the will, the court ordered return of the property to the decedent’s heirs, inasmuch as

the trust had failed. The Supreme Court held the decision permissible, inasmuch as the state court had merely carried out the testator’s intent with no racial motivation itself, and distinguished

Shelley on the basis that African Americans were not discriminated

against by the reversion, because everyone was deprived of use of

the park. 30

Similar to Shelley in controversy and the indefiniteness of its

rationale, the latter element of which appears to have undergone

a modifying rationalization, is Reitman v. Mulkey, 31 in which, following enactment of an ‘‘open housing’’ law by the California legislature, an initiative and referendum measure was passed that repealed the law and amended the state constitution to prevent any

agency of the State or of local government from henceforth forbidding racial discrimination in private housing. Upholding a state

court invalidation of this amendment, the Court appeared to

ground its decision on two lines of reasoning, either on the state

court’s premise that passage of the provision encouraged private

racial discrimination impermissibly or on the basis that the provision made discriminatory racial practices immune from the ordi-
AMENDMENT 14—RIGHTS GUARANTEED 1793

32See, e.g., id. at 377 (language suggesting both lines of reasoning). 33 Hunter v. Erickson, 393 U.S. 385 (1969). In Lee v. Nyquist, 318 F. Supp. 710

(W.D.N.Y. 1970), aff’d, 402 U.S. 935 (1971), New York enacted a statute prohibiting

the assignment of students or the establishment of school districts for the purpose

of achieving racial balance in attendance, unless with the express approval of a locally elected school board or with the consent of the parents, a measure designed

to restrict the state education commissioner’s program to ameliorate de facto segregation. The federal court held the law void, holding in reliance on Mulkey that

the statute encouraged racial discrimination and that by treating educational matters involving racial criteria differently than it treated other educational matters it

made more difficult a resolution of the de facto segregation problem. 34Washington v. Seattle School Dist., 458 U.S. 457 (1982); Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527 (1982). A five-to-four majority in Seattle found the

fault to be a racially-based structuring of the political process making it more difficult to undertake actions designed to improve racial conditions than to undertake

any other educational action. An 8-to–1 majority in Crawford found that repeal of

a measure to bus to undo de facto segregation, without imposing any barrier to

other remedial devices, was permissible. 35 Crawford, 458 U.S. at 539, quoted in Seattle, 458 U.S. at 483. See also Dayton

Bd. of Educ. v. Brinkman, 433 U.S. 406, 414 (1977).

nary legislative process, while not so limiting other processes, and

thus impermissibly burdened minorities in the achievement of legitimate aims in a way other classes of persons were not burdened. 32 In a subsequent case, the latter rationale was utilized in

a unanimous decision voiding an Akron ordinance, which suspended an ‘‘open housing’’ ordinance and provided that any future

ordinance regulating transactions in real property ‘‘on the basis of

race, color, religion, national origin or ancestry’’ must be submitted

to a vote of the people before it could become effective, while any

other ordinance would become effective when passed, except that it

could be petitioned to referendum. 33

That Mulkey and Hunter stand for the proposition that imposing a barrier to racial amelioration legislation is the decisive and

condemning factor is evident from two recent decisions with respect

to state referendum decisions on busing for integration. 34 Both

cases agree that ‘‘the simple repeal or modification of desegregation

or antidiscrimination laws, without more, never has been viewed as

embodying a presumptively invalid racial classification.’’ 35 It is

thus not impermissible to overturn a previous governmental decision, or to defeat the effort initially to arrive at such a decision,

simply because the state action may conceivably encourage private

discrimination.

In other instances in which the discrimination is being practiced by private parties, the question essentially is whether there

has been sufficient state involvement to bring the Fourteenth

Amendment into play; that is, the private discrimination is not constitutionally forbidden ‘‘unless to some significant extent the State

in any of its manifestations has been found to have become in-
1794 AMENDMENT 14—RIGHTS GUARANTEED

36 Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). 37 Id. at 722. 38Smith v. Allwright, 321 U.S. 649 (1944). 39Pennsylvania v. Board of Trustees, 353 U.S. 230 (1957). On remand, the state

courts substituted private persons as trustees to carry out the will. In re Girard College Trusteeship, 391 Pa. 434, 138 A. 2d 844, cert. denied, 357 U.S. 570 (1958). This

expedient was, however, ultimately held unconstitutional. Brown v. Pennsylvania,

392 F.2d 120 (3d Cir.), cert. denied, 391 U.S. 921 (1968). 40 Evans v. Newton, 382 U.S. 296 (1966). Justices Black, Harlan, and Stewart

dissented. Id. at 312, 315. For the subsequent ruling in this case, see Evans v.

Abney, 396 U.S. 435 (1970), considered supra, p. 1686. 41 Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).

volved in it.’’ 36 There is no clear formula. ‘‘Only by sifting facts and

weighing circumstances can the nonobvious involvement of the

State in private conduct be attributed its true significance.’’ 37 State

action was found in a number of circumstances. The ‘‘White Primary’’ was outlawed by the Court not because the party’s discrimination was commanded by statute but because the party operated

under the authority of the State and it in fact controlled the outcome of elections. 38 Although the City of Philadelphia was acting

as trustee in administering and carrying out the will of someone

who had left money for a college, admission to which was stipulated to be for white boys only, the city was held to be engaged in

forbidden state action in discriminating against African Americans

in admission. 39 When state courts on petition of interested parties

removed the City of Macon as trustees of a segregated park left in

trust for such use in a will and appointed new trustees in order to

keep the park segregated, the Court reversed, finding that the City

was still inextricably involved in the maintenance and operation of

the park. 40 In a significant case in which the Court explored a

lengthy list of contacts between the State and a private corporation, it held that the lessee of property within an off-street parking

building owned and operated by a municipality could not exclude

African Americans from its restaurant. It was emphasized that the

building was publicly built and owned, that the restaurant was an

integral part of the complex, that the restaurant and the parking

facilities complemented each other, that the parking authority had

regulatory power over the lessee and had made stipulations but

nothing related to racial discrimination, and that the financial success of the restaurant benefited the governmental agency; ‘‘the degree of state participation and involvement in discriminatory action’’ was sufficient to condemn it. 41

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
AMENDMENT 14—RIGHTS GUARANTEED 1795

42See, e.g., the various opinions in Bell v. Maryland, 378 U.S. 226 (1964). 43 407 U.S. 163 (1972). One provision of the state law was, however, held unconstitutional. That provision required a licensee to observe all its by-laws and therefore mandated the Moose Lodge to follow the discrimination provision of its by-laws.

Id. at 177–79. 44 Id. at 173. 45 Id. at 176–77. 46 Id. at 174–75. 47 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974) (under the due

process clause). 48Powe v. Miles, 407 F.2d. 73, 81 (2d Cir. 1968). See also NCAA v. Tarkanian,

488 U.S. 179 (1988) (college athletic association’s application of rules leading to a

state university’s suspension of its basketball coach did not constitute state action

on the part of the association).

of state trespass laws be invalid if it effectuated discrimination?

The ‘‘sit-in’’ cases of the early 1960’s presented all these questions

and more but did not resolve them. 42 The basics of an answer

came in Moose Lodge No. 107 v. Irvis, 43 in which the Court held

that the fact that a private club was required to have a liquor license to serve alcoholic drinks and did have such a license did not

bar it from discriminating against African Americans. It denied

that private discrimination became constitutionally impermissible

‘‘if the private entity receives any sort of benefit or service at all

from the State, or if it is subject to state regulation in any degree

whatever,’’ since any such rule would eviscerate the state action

doctrine. Rather, ‘‘where the impetus for the discrimination is private, the State must have ‘significantly involved itself with invidious discrimination.’ ’’ 44 Moreover, while the State had extensive

powers to regulate in detail the liquor dealings of its licensees, ‘‘it

cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense

a partner or even a joint venturer in the club’s enterprise.’’ 45 And

there was nothing in the licensing relationship here that approached ‘‘the symbiotic relationship between lessor and lessee’’

which the Court had found in Burton. 46

The Court subsequently made clear that governmental involvement with private persons or private corporations is not the critical

factor in determining the existence of ‘‘state action.’’ Rather, ‘‘the

inquiry must be whether there is a sufficiently close nexus between

the State and the challenged action of the regulated entity so that

the action of the latter may be fairly treated as that of the State

itself.’’ 47 Or, to quote Judge Friendly, who first enunciated the test

this way, the ‘‘essential point’’ is ‘‘that the state must be involved

not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the

injury. Putting the point another way, the state action, not the private, must be the subject of the complaint.’’ 48 Therefore, the Court
1796 AMENDMENT 14—RIGHTS GUARANTEED

49 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357 (1974). In dissent, Justice Marshall protested that the quoted language marked ‘‘a sharp departure’’ from

precedent, ‘‘that state authorization and approval of ‘private’ conduct has been held

to support a finding of state action.’’ Id. at 369. Note that in Cantor v. Detroit Edison Co., 428 U.S. 579 (1976), the plurality opinion used much the same analysis to

deny antitrust immunity to a utility practice merely approved but not required by

the regulating commission, but most of the Justices were on different sides of the

same question in the two cases. 50 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351–58 (1974). On the due

process limitations on the conduct of public utilities, see Memphis Light, Gas &

Water Div. v. Craft, 436 U.S. 1 (1978). 51Flagg Bros. v. Brooks, 436 U.S. 149, 156 (1978) (due process). 52 Id. at 164–66. If, however, a state officer acts with the private party in securing the property in dispute, that is sufficient to create the requisite state action and

the private party may be subjected to suit if the seizure does not comport with due

process. Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). 53 Blum v. Yaretsky, 457 U.S. 991 (1982).

found no such nexus between the State and a public utility’s action

in terminating service to a customer. Neither the fact that the business was subject to state regulation, nor that the State had conferred in effect a monopoly status upon the utility, nor that in reviewing the company’s tariff schedules the regulatory commission

had in effect approved the termination provision included therein

(but had not required the practice, had ‘‘not put its own weight on

the side of the proposed practice by ordering it’’) 49 operated to

make the utility’s action the State’s action. 50 Significantly tightening the standard further against a finding of ‘‘state action,’’ the

Court asserted that plaintiffs must establish not only that a private

party ‘‘acted under color of the challenged statute, but also that its

actions are properly attributable to the State. . . .’’ 51 And the actions are to be attributable to the State apparently only if the State

compelled the actions and not if the State merely established the

process through statute or regulation under which the private

party acted. Thus, when a private party, having someone’s goods

in his possession and seeking to recover the charges owned on storage of the goods, acts under a permissive state statue to sell the

goods and retain out of the proceeds his charges, his actions are

not governmental action and need not follow the dictates of the due

process clause. 52 In the context of regulated nursing home situations, in which the homes were closely regulated and state officials

reduced or withdrew Medicaid benefits paid to patients when they

were discharged or transferred to institutions providing a lower

level of care, the Court found that the actions of the homes in discharging or transferring were not thereby rendered the actions of

the government. 53

In a few cases, the Court has indicated that discriminatory action by private parties may be precluded by the Fourteenth Amendment if the particular party involved is exercising a ‘‘public func-
AMENDMENT 14—RIGHTS GUARANTEED 1797

54 345 U.S. 461 (1953). 55 326 U.S. 501 (1946). 56 Id. at 506. 57See 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. 58 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974). 59Flagg Bros. v. Brooks, 436 U.S. 149, 157–159 (1978). 60 Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982). 61 Blum v. Yaretsky, 457 U.S. 991, 1011–1012 (1982). 62Flagg Bros. v. Brooks, 436 U.S. 149, 157 (1978) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974)). 63 Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982). 64 Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).

tion.’’ This rationale is one of those which emerges from the various

opinions in Terry v. Adams. 54 In Marsh v. Alabama, 55 a Jehovah’s

Witness had been convicted of trespass after passing out literature

on the streets of a company-owned town and the Court reversed.

It is not at all clear from the opinion of the Court what it was that

made the privately-owned town one to which the Constitution applied. In essence, it appears to have been that the town ‘‘had all

the characteristics of any other American town,’’ that it was ‘‘like’’

a State. ‘‘The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become

circumscribed by the statutory and constitutional rights of those

who use it.’’ 56 Subsequent efforts to expand upon Marsh were at

first successful and then turned back, and the ‘‘public function’’

theory in the context of privately-owned shopping centers was

sharply curtailed. 57

Attempts to apply such a theory to other kinds of private conduct, such as to private utilities, 58 to private utilization of permissive state laws to secure property claimed to belong to creditors, 59

to the operation of schools for ‘‘problem’’ children referred by public

institutions, 60 and to the operations of nursing homes the patients

of which are practically all funded by public resources, 61 proved

unavailing. The ‘‘public function’’ doctrine is to be limited to a delegation of ‘‘a power ‘traditionally exclusively reserved to the

State.’ ’’ 62 Therefore, the question is not ‘‘whether a private group

is serving a ‘public function.’. . . That a private entity performs a

function which serves the public does not make its acts state action.’’ 63 Public function did play an important part, however, in the

Court’s finding state action in exercise of peremptory challenges in

jury selection by non-governmental parties.

In finding state action in the racially discriminatory use of peremptory challenges by a private party during voir dire in a civil

case, 64 the Court applied tests developed in an earlier case involv-
1798 AMENDMENT 14—RIGHTS GUARANTEED

65Lugar v. Edmondson Oil Corp., 457 U.S. 922 (1982). 66 Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620–22 (1991) (citations

omitted). 67 Id. at 624, 625. 68 Id. at 628. 69 Id. at 639, 643. 70Georgia v. McCollum, 112 S. Ct. 2348 (1992). It was, of course, beyond dispute that a prosecutor’s exercise of peremptory challenges constitutes state action.

See Swain v. Alabama, 380 U.S. 202 (1965); Batson v. Kentucky, 476 U.S. 79 (1986).

ing garnishment and attachment. 65 The Court first asks ‘‘whether

the claimed constitutional deprivation resulted from the exercise of

a right or privilege having its source in state authority,’’ and then

‘‘whether the private party charged with the deprivation could be

described in all fairness as a state actor.’’ In answering the second

question, the Court considers three factors: ‘‘the extent to which

the actor relies on governmental assistance and benefits, whether

the actor is performing a traditional governmental function, and

whether the injury caused is aggravated in a unique way by the

incidents of governmental authority.’’ 66 There was no question that

exercise of peremptory challenges derives from governmental authority (either state or federal, as the case may be); exercise of peremptory challenges is authorized by law, and the number is limited. Similarly, the Court easily concluded that private parties exercise peremptory challenges with the ‘‘overt’’ and ‘‘significant’’ assistance of the court. So too, jury selection is the performance of a

traditional governmental function: the jury ‘‘is a quintessential governmental body, having no attributes of a private actor,’’ and it followed, so the Court majority believed, that selection of individuals

to serve on that body is also a governmental function whether or

not it is delegated to or shared with private individuals. 67 Finally,

the Court concluded that ‘‘the injury caused by the discrimination

is made more severe because the government permits it to occur

within the courthouse itself.’’ 68 Dissenting Justice O’Connor complained that the Court was wiping away centuries of adversary

practice in which ‘‘unrestrained private choice’’ has been recognized

in exercise of peremptory challenges; ‘‘[i]t is antithetical to the nature of our adversarial process,’’ the Justice contended, ‘‘to say that

a private attorney acting on behalf of a private client represents

the government for constitutional purposes.’’ 69

Even though in a criminal case it is the government and the

defendant who are adversaries, rather than two private parties, as

is ordinarily the case in civil actions, the Court soon applied these

same principles to hold that exercise of peremptory challenges by

the defense in a criminal case also constitutes state action. 70 The

same generalities apply with at least equal force: there is overt and

significant governmental assistance in creating and structuring the
AMENDMENT 14—RIGHTS GUARANTEED 1799

71Polk County v. Dodson, 454 U.S. 512 (1981). 72 112 U.S. at 2356. Justice O’Connor, again dissenting, pointed out that the

Court’s distinction was inconsistent with Dodson’s declaration that public defenders

are not vested with state authority ‘‘when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.’’ Id. at 2362. Justice Scalia,

also dissenting again, decried reduction of Edmonson ‘‘to the terminally absurd: A

criminal defendant, in the process of defending himself against the state, is held to

be acting on behalf of the state.’’ Id. at 2364. Chief Justice Rehnquist, who had dissented in Edmonson, concurred in McCollum in the belief that it was controlled by

Edmonson, and Justice Thomas, who had not participated in Edmonson, expressed

similar views in a concurrence. 73 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974); Blum v.

Yaretsky, 457 U.S. 991, 1004 (1982). Cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163

(1972). 74 Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Flagg Bros. v. Brooks, 436 U.S.

149, 166 (1978); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357 (1974). 75On funding, see Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959 (4th

Cir. 1963), cert. denied, 376 U.S. 938 (1964); Kerr v. Enoch Pratt Free Library, 149

F.2d 212 (4th Cir.), cert. denied, 326 U.S. 721 (1945); Christhilf v. Annapolis Emergency Hosp. Ass’n, 496 F.2d 174 (4th Cir. 1974). But cf. Greco v. Orange Mem.

Hosp. Corp., 513 F.2d 873 (5th Cir.), cert. denied, 423 U.S. 1000 (1975). On tax

benfits, see Green v. Connally, 330 F. Supp. 1150 (D.D.C.) (three-judge court), aff’d.

sub nom. Coit v. Green, 404 U.S. 997 (1971); McGlotten v. Connally, 338 F. Supp.

448 (D.D.C. 1972); Jackson v. Statler Foundation, 496 F.2d 623 (2d Cir. 1974). But

cf. New York City Jaycees v. United States Jaycees, 512 F.2d 856 (2d Cir. 1976);

process, a criminal jury serves an important governmental function

and its selection is also important, and the courtroom setting intensifies harmful effects of discriminatory actions. An earlier case 71

holding that a public defender was not a state actor when engaged

in general representation of a criminal defendant was distinguished, the Court emphasizing that ‘‘exercise of a peremptory

challenge differs significantly from other actions taken in support

of a defendant’s defense,’’ since it involves selection of persons to

wield governmental power. 72

The rules developed by the Court for business regulation are

that (1) the ‘‘mere fact that a business is subject to state regulation

does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment,’’ 73 and (2) ‘‘a State normally

can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed to be

that of the State.’’ 74

Previously, the Court’s decisions with respect to state ‘‘involvement’’ in the private activities of individuals and entities raised the

question whether financial assistance and tax benefits provided to

private parties would so clothe them with state action that discrimination by them and other conduct would be subjected to constitutional constraints. Many lower courts had held state action to

exist in such circumstances. 75 However the question might have
1800 AMENDMENT 14—RIGHTS GUARANTEED

Greenya v. George Washington Univ., 512 F.2d 556 (D.C. Cir.), cert. denied, 423

U.S. 995 (1975). 76 457 U.S. 830 (1982). 77 457 U.S. 991 (1982). 78 Id. at 1011. 79 489 U.S. 189, 197 (1989). 80 Estelle v. Gamble, 429 U.S. 97 (1976). 81 Youngberg v. Romeo, 457 U.S. 307 (1982).

been answered under the older cases, it is evident that a negative

answer flows from the premises of the more recent cases. In

Rendell-Baker v. Kohn, 76 the private school received ‘‘problem’’ students referred to it by public institutions, it was heavily regulated,

and it received between 90 and 99% of its operating budget from

public funds. In Blum v. Yaretsky, 77 the nursing home had practically all of its operating and capital costs subsidized by public

funds and more than 90% of its residents had their medical expenses paid from public funds; in setting reimbursement rates, the

State included a formula to assure the home a profit. Nevertheless,

in both cases the Court found that the entities remained private,

and required plaintiffs to show that as to the complained of actions

the State was involved, either through coercion or encouragement.

‘‘That programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than

the fact of regulation of such an entity in demonstrating that the

State is responsible for decisions made by the entity in the course

of its business.’’ 78

In the social welfare area, the Court has drawn a sharp distinction between governmental action subject to substantive due

process requirements, and governmental inaction, not so constrained. There being ‘‘no affirmative right to governmental aid,’’

the Court announced in DeShaney v. Winnebago County Social

Services Department 79 that ‘‘as a general matter, . . . a State’s failure to protect an individual against private violence simply does

not constitute a violation of the Due Process Clause.’’ Before there

can be state involvement creating an affirmative duty to protect an

individual, the Court explained, the state must have taken a person into its custody and held him there against his will so as to

restrict his freedom to act on his own behalf. Thus, while the Court

had recognized due process violations for failure to provide adequate medical care to incarcerated prisoners, 80 and for failure to

ensure reasonable safety for involuntarily committed mental patients, 81 no such affirmative duty arose from the failure of social

services agents to protect an abused child from further abuse from

his parent. Even though possible abuse had been reported to the

agency and confirmed and monitored by the agency, and the agency
AMENDMENT 14—RIGHTS GUARANTEED 1801

82 489 U.S. at 201. 83 Id. at 202. 84 Id. at 203. 85For 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). 86 413 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.’’ 82 While the State

may have incurred liability in tort through the negligence of its social workers, ‘‘[not] every tort committed by a state actor [is] a constitutional violation.’’ 83 ‘‘[I]t is well to remember . . . that the harm

was inflicted not by the State of Wisconsin, but by [the child’s] father.’’ 84

Judicial inquiry into the existence of ‘‘state action’’ may be directed toward the implementation of either of two remedies, and

this may well lead to some difference in the search. In the cases

considered here suits were against a private actor to compel him

to halt his discriminatory action, to enjoin him to admit blacks to

a lunch counter, for example. But one could just as readily bring

suit against the government to compel it to cease aiding the private

actor in his discriminatory conduct. Recurrence to the latter remedy might well avoid constitutional issues that an order directed to

the private party would raise. 85 In any event, it must be determined whether the governmental involvement is sufficient to give

rise to a constitutional remedy; in a suit against the private party

it must be determined whether he is so involved with the government as to be subject to constitutional restraints, while in a suit

against the government agency it must be determined whether the

government’s action ‘‘impermissibly fostered’’ the private conduct.

Thus, in Norwood v. Harrison, 86 the Court struck down the

provision of free textbooks by the State to private schools set up

as racially segregated institutions to avoid desegregated public

schools, even though the textbook program predated the establishment of these schools. ‘‘[A]ny tangible state assistance, outside the

generalized services government might provide to private segregated schools in common with other schools, and with all citizens,

is constitutionally prohibited if it has ‘a significant tendency to facilitate, reinforce, and support private discrimination.’. . . The constitutional obligation of the State requires it to steer clear, not only

of operating the old dual system of racially segregated schools, but

also of giving significant aid to institutions that practice racial or
1802 AMENDMENT 14—RIGHTS GUARANTEED

87Gilmore v. City of Montgomery, 417 U.S. 556, 568–69 (1974) (quoting Norwood v. Harrison, 413 U.S. 455, 466, 467 (1973)). 88Gilmore v. City of Montgomery, 417 U.S. 556, 570 (1974). 89 Id. at 573–74. In Blum v. Yaretsky, 457 U.S. 991 (1982), plaintiffs, objecting

to decisions of the nursing home in discharging or transferring patients, sued public

officials, but they objected to the discharges and transfers, not to the changes in

Medicaid benefits made by the officials. 90Simon 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.’’ 87 And in a subsequent case, the

Court approved a lower court order that barred the city from permitting exclusive temporary use of public recreational facilities by

segregated private schools because that interfered with an outstanding order mandating public school desegregation. But it remanded for further factfinding with respect to permitting

nonexclusive use of public recreational facilities and general government services by segregated private schools so that the district

court could determine whether such uses ‘‘involve government so

directly in the actions of those users as to warrant court intervention on constitutional grounds.’’ 88 Unlike the situation in which

private club discrimination is attacked directly, ‘‘the question of the

existence of state action centers in the extent of the city’s involvement in discriminatory actions by private agencies using public facilities. . . .’’ Receipt of just any sort of benefit or service at all does

not by the mere provision—electricity, water, and police and fire

protection, access generally to municipal recreational facilities—

constitute a showing of state involvement in discrimination and the

lower court’s order was too broad because not predicated upon a

proper finding of state action. ‘‘If, however, the city or other governmental entity rations otherwise freely accessible recreational facilities, the case for state action will naturally be stronger than if the

facilities are simply available to all comers without condition or

reservation.’’ The lower court was directed to sift facts and weigh

circumstances on a case-by-case basis in making determinations. 89

It should be noted, however, that the Court has interposed,

without mentioning these cases, a potentially significant barrier to

utilization of the principle set out in them. In a 1976 decision,

which it has expanded since, it held that plaintiffs, seeking

disallowal of governmental tax benefits accorded to institutions

that allegedly discriminated against complainants and thus involved the government in their actions, must in order to bring the

suit show that revocation of the benefit would cause the institutions to cease the complained-of conduct. 90

‘‘Persons’’.—In the case in which it was first called upon to interpret this clause, the Court doubted whether ‘‘any action of a
AMENDMENT 14—RIGHTS GUARANTEED 1803

91Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873). Cf. Weber v. Aetna

Casualty & Surety Co., 406 U.S. 164, 177 (1972) (Justice Rehnquist dissenting). 92 Chicago, B. & Q. R.R. v. Iowa, 94 U.S. 155 (1877); Peik v. Chicago & Nw.

Ry., 94 U.S. 164 (1877); Chicago, M. & St. P. R.R. v. Ackley, 94 U.S. 179 (1877);

Winona & St. Peter R.R. v. Blake, 94 U.S. 180 (1877). 93Santa Clara County v. Southern Pac. R.R., 118 U.S. 394, 396 (1886). The

background and developments from this utterance are treated in H. GRAHAM,

EVERYMAN’S CONSTITUTION—HISTORICAL ESSAYS ON THE FOURTEENTH AMENDMENT,

THE ‘‘CONSPIRACY THEORY,’’ AND AMERICAN CONSTITUTIONALISM (1968), chs. 9, 10,

and pp. 566–84. Justice Black, in Connecticut General Life Ins. Co. v. Johnson, 303

U.S. 77, 85 (1938), and Justice Douglas, in Wheeling Steel Corp. v. Glander, 337

U.S. 562, 576 (1949), have disagreed that corporations are persons for equal protection purposes. 94 Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). For modern examples, see Levy

v. Louisiana, 391 U.S. 68, 70 (1968); Graham v. Richardson, 403 U.S. 365, 371

(1971). 95 City of Newark v. New Jersey, 262 U.S. 192 (1923); Williams v. Mayor of Baltimore, 289 U.S. 36 (1933). 96See Plyler v. Doe, 457 U.S. 202, 210–16 (1982) (explicating meaning of the

phrase in the context of holding that aliens illegally present in a State are ‘‘within

its jurisdiction’’ and may thus raise equal protection claims). 97 Blake v. McClung, 172 U.S. 239, 261 (1898); Sully v. American Nat’l Bank,

178 U.S. 289 (1900).

State not directed by way of discrimination against the [N]egroes

as a class, or on account of their race, will ever be held to come

within the purview of this provision.’’ 91 Nonetheless, in deciding

the Granger Cases shortly thereafter, the Justices seemingly entertained no doubt that the railroad corporations were entitled to invoke the protection of the clause. 92 Nine years later, Chief Justice

Waite announced from the bench that the Court would not hear argument on the question whether the equal protection clause applied to corporations. ‘‘We are all of the opinion that it does.’’ 93 The

word has been given the broadest possible meaning. ‘‘These provisions are universal in their application, to all persons within the

territorial jurisdiction, without regard to any differences of race, of

color, or of nationality. . .’’ 94 The only qualification is that a municipal corporation cannot invoke the clause against its State. 95

‘‘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. 96 It was first

held that a foreign corporation not doing business in a State under

conditions that subjected it to process issuing from the courts of

that State was not ‘‘within the jurisdiction’’ and could not complain

of the preferences granted resident creditors in the distribution of

assets of an insolvent corporation, 97 but this holding was subsequently qualified, the Court holding that a foreign corporation

which sued in a court of a State in which it was not licensed to
1804 AMENDMENT 14—RIGHTS GUARANTEED

98Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262 U.S. 544

(1923). 99 Hillsborough v. Cromwell, 326 U.S. 620 (1946). 100Wheeling 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). 101The story is recounted in J. JAMES, THE FRAMING OF THE FOURTEENTH

AMENDMENT (1956). See also JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION (B. Kendrick, ed. 1914). The floor debates are collected in 1 STATUTORY HISTORY OF THE UNITED STATES—CIVIL RIGHTS 181 (B. Schwartz, ed. 1970). 102 Civil Rights Act of 1866, ch. 31, 14 Stat. 27, now in part 42 U.S.C. §§ 1981,

1982. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422–37 (1968). 103 As in fact much of the legislation which survived challenge in the courts was

repealed in 1894 and 1909. 28 Stat. 36; 35 Stat. 1088. See R. CARR, FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR A SWORD 45–46 (1947). 104TENBROEK, EQUAL UNDER LAW (rev. ed. 1965); Frank & Munro, The Original Understanding of ‘‘Equal Protection of the Laws,’’ 50 COLUM. L. REV. 131 (1950);

Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV.

1 (1955); and see the essays collected in H. GRAHAM, EVERYMAN’S CONSTITUTION—

HISTORICAL ESSAYS ON THE FOURTEENTH AMENDMENT, THE ‘‘CONSPIRACY THEORY,’’

AND AMERICAN CONSTITUTIONALISM (1968). In calling for reargument in Brown v.

Board of Education, 345 U.S. 972 (1952), the Court asked for and received extensive

analysis of the legislative history of the Amendment with no conclusive results.

Brown v. Board of Education, 347 U.S. 483, 489–90 (1954). 105Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873).

do business to recover possession of property wrongfully taken from

it in another State was ‘‘within the jurisdiction’’ and could not be

subjected to unequal burdens in the maintenance of the suit. 98 The

test of amenability to service of process within the State was ignored in a later case dealing with discriminatory assessment of

property belonging to a nonresident individual. 99 When a State has

admitted a foreign corporation to do business within its borders,

that corporation is entitled to equal protection of the laws but not

necessarily to identical treatment with domestic corporations. 100

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 § 1 of the Fourteenth

Amendment. 101 Immediately pressing to its sponsors was the desire to provide a firm constitutional basis for already-enacted civil

rights legislation, 102 and, by amending the Constitution, to place

repeal beyond the accomplishment of a simple majority in a future

Congress. 103 No doubt there were conflicting interpretations of the

phrase ‘‘equal protection’’ among sponsors and supporters and the

legislative history does little to clarify whether any sort of consensus was accomplished and if so what it was. 104 While the Court

early recognized that African Americans were the primary intended

beneficiaries of the protections thus adopted, 105 the spare language

was majestically unconfined to so limited a class or to so limited

a purpose. Thus, as will be seen, the equal protection standard
AMENDMENT 14—RIGHTS GUARANTEED 1805

106 In Buck v. Bell, 274 U.S. 200, 208 (1927), Justice Holmes characterized the

equal protection clause as ‘‘the last resort of constitutional arguments.’’ 107See Yick Wo v. Hopkins, 118 U.S. 356 (1886) (discrimination against Chinese

on the West Coast). 108Tigner v. Texas, 310 U.S. 141, 147 (1980). 109 Atchison, T. & S.F.R.R. v. Matthews, 174 U.S. 96, 106 (1899). See also from

the same period, Orient Ins. Co. v. Daggs, 172 U.S. 557 (1869); Bachtel v. Wilson,

204 U.S. 36 (1907); Watson v. Maryland, 218 U.S. 173 (1910), and later cases. Kotch

v. Board of River Port Pilot Comm’rs, 330 U.S. 552 (1947); Goesaert v. Cleary, 335

U.S. 464 (1948); McGowan v. Maryland, 366 U.S. 420 (1961); Schilb v. Kuebel, 404

U.S. 357 (1971); Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980); Schweiker

v. Wilson, 450 U.S. 221 (1981). 110 Barrett v. Indiana, 229 U.S. 26 (1913). 111 Barbier v. Connolly, 113 U.S. 27, 32 (1885). 112Ferguson v. Skrupa, 372 U.S. 726, 732 (1963); Williamson v. Lee Optical Co.,

348 U.S. 483, 489 (1955).

came to be applicable to all classifications by legislative and other

official bodies, though not with much initial success, 106 until now

the equal protection clause in the fields of civil rights and fundamental liberties looms large as a constitutional text affording the

federal and state courts extensive powers of review with regard to

differential treatment of persons and classes.

The Traditional Standard: Restrained Review.—The traditional standard of review of equal protection challenges of classifications developed largely though not entirely in the context of economic regulation. 107 It is still most validly applied there, although

it appears in many other contexts as well. A more active review

has been developed for classifications based on a ‘‘suspect’’ indicium

or affecting a ‘‘fundamental’’ interest.

‘‘The Fourteenth Amendment enjoins ‘the equal protection of

the laws,’ and laws are not abstract propositions.’’ Justice Frankfurter once wrote. ‘‘They do not relate to abstract units, A, B, and

C, but are expressions of policy arising out of specific difficulties,

addressed to the attainment of specific ends by the use of specific

remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were

the same.’’ 108 The mere fact of classification will not void legislation, 109 then, because in the exercise of its powers a legislature has

considerable discretion in recognizing the differences between and

among persons and situations. 110 ‘‘Class legislation, discriminating

against some and favoring others, is prohibited; but legislation

which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons

similarly situated, is not within the amendment.’’ 111 Or, more succinctly, ‘‘statutes create many classifications which do not deny

equal protection; it is only ‘invidious discrimination’ which offends

the Constitution.’’ 112
1806 AMENDMENT 14—RIGHTS GUARANTEED

113 220 U.S. 61, 78–79 (1911), quoted in full in Morey v. Doud, 354 U.S. 457,

463–64 (1957). Classifications which are purposefully discriminatory fall before the

equal protection clause without more. E.g., Barbier v. Connolly, 113 U.S. 27, 30

(1885); Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886). Cf. New York City Transit

Auth. v. Beazer, 440 U.S. 568, 593 n.40 (1979). Explicit in all the formulations is

that a legislature must have had a permissible purpose, a requirement which is seldom failed, given the leniency of judicial review. But see Zobel v. Williams, 457 U.S.

55, 63–64 (1982), and id. at 65 (Justice Brennan concurring). 114F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). See also

Brown-Forman Co. v. Kentucky, 217 U.S. 563, 573 (1910). 115 E.g., F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920); Stewart Dry

Goods Co. v. Lewis, 294 U.S. 550 (1935); Mayflower Farms v. Ten Eyck, 297 U.S.

266 (1936). 116 In Nebbia v. New York, 291 U.S. 502, 537 (1934), speaking of the limits of

the due process clause, the Court observed that ‘‘in the absence of other constitutional restrictions, a state is free to adopt whatever economic policy may reasonably

be deemed to promote public welfare.’’

How then is the line between permissible and invidious classification to be determined? In Lindsley v. Natural Carbonic Gas

Co., 113 the Court summarized one version of the rules still prevailing. ‘‘1. The equal protection clause of the Fourteenth Amendment

does not take from the State the power to classify in the adoption

of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A

classification having some reasonable basis does not offend against

that clause merely because it is not made with mathematical nicety

or because in practice it results in some inequality. 3. When the

classification in such a law is called in question, if any state of

facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must

be assumed. 4. One who assails the classification in such a law

must carry the burden of showing that it does not rest upon any

reasonable basis, but is essentially arbitrary.’’ Especially because of

the emphasis upon the necessity for total arbitrariness, utter irrationality, and the fact that the Court will strain to conceive of a

set of facts that will justify the classification, the test is extremely

lenient and, assuming the existence of a constitutionally permissible goal, no classification will ever be upset. But, contemporaneously with this test, the Court also pronounced another lenient

standard which did leave to the courts a judgmental role. In this

test, ‘‘the classification must be reasonable, not arbitrary, and must

rest upon some ground of difference having a fair and substantial

relation to the object of the legislation, so that all persons similarly

circumstanced shall be treated alike.’’ 114 Use of the latter standard

did in fact result in some invalidations. 115

But then, coincident with the demise of substantive due process in the area of economic regulation, 116 the Court reverted to the
AMENDMENT 14—RIGHTS GUARANTEED 1807

117 E.g., Tigner v. Texas, 310 U.S. 141 (1940); Kotch v. Board of River Port Pilot

Comm’rs, 330 U.S. 552 (1947); Goesaert v. Cleary, 335 U.S. 464 (1948); Railway Express Agency v. City of New York, 336 U.S. 106 (1949); McGowan v. Maryland, 366

U.S. 420 (1961).

118Williamson 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).

119 City of New Orleans v. Dukes, 427 U.S. 297, 303–04 (1976); City of Pittsburg

v. Alco Parking Corp., 417 U.S. 369 (1974).

120Dandridge v. Williams, 397 U.S. 471, 485–86 (1970); Jefferson v. Hackney,

406 U.S. 535, 549 (1972). See also New York City Transit Auth. v. Beazer, 440 U.S.

568, 587–94 (1979).

121 E.g., McGinnis v. Royster, 410 U.S. 263, 270–77 (1973); Johnson v. Robison,

415 U.S. 361, 374–83 (1974); City of Charlotte v. International Ass’n of Firefighters,

426 U.S. 283, 286–89 (1976). It is significant that these opinions were written by

Justices who subsequently dissented from more relaxed standard of review cases

and urged adherence to at least a standard requiring articulation of the goals

sought to be achieved and an evaluation of the ‘‘fit’’ of the relationship between goal

and classification. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 182 (1980) (Justices Brennan and Marshall dissenting); Schweiker v. Wilson, 450 U.S. 221, 239

(1981) (Justices Powell, Brennan, Marshall, and Stevens dissenting). See also New

York City Transit Auth. v. Beazer, 440 U.S. 568, 594 (1979) (Justice Powell concurring in part and dissenting in part), and id. at 597, 602 (Justices White and Marshall dissenting).

former standard, deferring to the legislative judgment on questions

of economics and related matters; even when an impermissible purpose could have been attributed to the classifiers it was usually

possible to conceive of a reason that would justify the classification. 117 Strengthening the deference was the recognition of discretion in the legislature not to try to deal with an evil or a class of

evils all within the scope of one enactment but to approach the

problem piecemeal, to learn from experience, and to ameliorate the

harmful results of two evils differently, resulting in permissible

over- and under-inclusive classifications. 118

In recent years, the Court has been remarkably inconsistent in

setting forth the standard which it is using, and the results have

reflected this. It has upheld economic classifications that suggested

impermissible intention to discriminate, reciting at length the

Lindsley standard, complete with the conceiving-of-a-basis and the

one-step-at-a-time rationale, 119 and it has applied this relaxed

standard to social welfare regulations. 120 In other cases, it has utilized the Royster Guano standard and has looked to the actual goal

articulated by the legislature in determining whether the classification had a reasonable relationship to that goal, 121 although it has

usually ended up upholding the classification. Finally, purportedly

applying the rational basis test, the Court has invalidated some
1808 AMENDMENT 14—RIGHTS GUARANTEED

122 E.g., Lindsey v. Normet, 405 U.S. 56, 74–79 (1972); Eisenstadt v. Baird, 405

U.S. 438 (1972); James v. Strange, 407 U.S. 128 (1972); Department of Agriculture

v. Moreno, 413 U.S. 528 (1973); City of Cleburne v. Cleburne Living Center, 473

U.S. 432 (1985) (rejecting various justifications offered for exclusion of a home for

the mentally retarded in an area where boarding homes, nursing and convalescent

homes, and fraternity or sorority houses were permitted). The Court in Reed v.

Reed, 404 U.S. 71, 76 (1971), utilized the Royster Guano formulation and purported

to strike down a sex classification on the rational basis standard, but, whether the

standard was actually used or not, the case was the beginning of the decisions applying a higher standard to sex classifications.

123 449 U.S. 166, 174–79 (1980). The quotation is id. at 176–77 n.10. The extent

of deference is notable, inasmuch as the legislative history seemed clearly to establish that the purpose the Court purported to discern as the basis for the classification was not the congressional purpose at all. Id. at 186–97 (Justice Brennan dissenting). The Court observed, however, that it was ‘‘constitutionally irrelevant’’

whether the plausible basis was in fact within Congress’ reasoning, inasmuch as the

Court has never required a legislature to articulate its reasons for enactng a statute. Id. at 179. For a continuation of the debate over actual purpose and conceivable

justification, see Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 680–85

(1981) (Justice Brennan concurring), and id. at 702–06 (Justice Rehnquist dissenting). Cf. Schweiker v. Wilson, 450 U.S. 221, 243–45 (1981) (Justice Powell dissenting).

124 450 U.S. 221, 230–39 (1981). Nonetheless, the four dissenters thought that

the purpose discerned by the Court was not the actual purpose, that it had in fact

no purpose in mind, and that the classification was not rational. Id. at 239.

125 Justice Blackmun wrote the Court’s opinion in Wilson, Justice Rehnquist in

Fritz.

126Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461–70 (1981). The

quoted phrase is at 466.

classifications in the areas traditionally most subject to total deference. 122

Attempts to develop a consistent principle have so far been unsuccessful. In Railroad Retirement Board v. Fritz, 123 the Court acknowledged that ‘‘[t]he most arrogant legal scholar would not claim

that all of these cases cited applied a uniform or consistent test

under equal protection principles,’’ but then went on to note the

differences between Lindsley and Royster Guano and chose the

former. But, shortly, in Schweiker v. Wilson, 124 in an opinion written by a different Justice, 125 the Court sustained another classification, using the Royster Guano standard to evaluate whether the

classification bore a substantial relationship to the goal actually

chosen and articulated by Congress. In between these decisions,

the Court approved a state classification after satisfying itself that

the legislature had pursued a permissible goal, but setting aside

the decision of the state court that the classification would not promote that goal; the Court announced that it was irrelevant whether

in fact the goal would be promoted, the question instead being

whether the legislature ‘‘could rationally have decided’’ that it

would. 126
AMENDMENT 14—RIGHTS GUARANTEED 1809

127 In City of Mesquite v. Aladdin’s Castle, 455 U.S. 283, 294 (1982), the Court

observed that it was not clear whether it would apply Royster Guano to the classification at issue, citing Fritz as well as Craig v. Boren, 429 U.S. 190 (1976), an intermediate standard case involving gender. Justice Powell denied that Royster

Guano or Reed v. Reed had ever been rejected. Id. at 301 n.6 (dissenting). See also

id. at 296–97 (Justice White). 128The 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. 129 323 U.S. 214, 216 (1944). In applying ‘‘rigid scrutiny,’’ however, the Court

was deferential to the judgment of military authorities, and to congressional judgment in exercising its war powers. 130 Brown v. Board of Education, 347 U.S. 483 (1954).

In short, it is uncertain which formulation of the rational basis

standard the Court will adhere to. 127 In the main, the issues in recent years have not involved the validity of classifications, but

rather the care with which the Court has reviewed the facts and

the legislation with its legislative history to uphold the challenged

classifications. The recent decisions voiding classifications have not

clearly set out which standard they have been using. 128 Determination in this area, then, must await presentation to the Court

of a classification which it would sustain under the Lindsley standard and invalidate under Royster Guano.

The New Standards: Active Review.—When government legislates or acts either on the basis of a ‘‘suspect’’ classification or

with regard to a ‘‘fundamental’’ interest, the traditional standard

of equal protection review is abandoned, and the Court exercises a

‘‘strict scrutiny.’’ Under this standard government must demonstrate a high degree of need, and usually little or no presumption

favoring the classification is to be expected. After much initial controversy within the Court, it has now created a third category, finding several classifications to be worthy of a degree of ‘‘intermediate’’ scrutiny requiring a showing of important governmental purposes and a close fit between the classification and the purposes.

Paradigmatic of ‘‘suspect’’ categories is classification by race.

First in the line of cases dealing with this issue is Korematsu v.

United States, 129 concerning the wartime evacuation of JapaneseAmericans from the West Coast, in which the Court said that because only a single ethnic-racial group was involved the measure

was ‘‘immediately suspect’’ and subject to ‘‘rigid scrutiny.’’ The

school segregation cases 130 purported to enunciate no per se rule,

however, although subsequent summary treatment of a host of segregation measures may have implicitly done so, until in striking

down state laws prohibiting interracial marriage or cohabitation

the Court declared that racial classifications ‘‘bear a far heavier

burden of justification’’ than other classifications and were invalid
1810 AMENDMENT 14—RIGHTS GUARANTEED

131McLaughlin v. Florida, 379 U.S. 184, 192, 194 (1964). 132Loving 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. 133Personnel Administrator v. Feeney, 442 U.S. 256, 272 (1979), quoted in

Washington v. Seattle School Dist., 458 U.S. 457, 485 (1982). 134 Regents of the Univ. of California v. Bakke, 438 U.S. 265, 287–20 (1978)

(Justice Powell announcing judgment of Court) (suspect), and id. at 355–79 (Justices

Brennan, White, Marshall, and Blackmun concurring in part and dissenting in part)

(intermediate scrutiny); Fullilove v. Klutznick, 448 U.S. 448, 491–92 (1980) (Chief

Justice Burger announcing judgment of Court) (‘‘a most searching examination’’ but

not choosing a particular analysis), and id. at 495 (Justice Powell concurring), 523

(Justice Stewart dissenting) (suspect), 548 (Justice Stevens dissenting) (searching

scrutiny). 135 Hunter v. Erickson, 393 U.S. 385 (1969); Washington v. Seattle School Dist.,

458 U.S. 457 (1982). 136Graham v. Richardson, 403 U.S. 365, 371–72 (1971). 137 Reed v. Reed, 404 U.S. 71 (1971); for the hint, see Eisenstadt v. Baird, 405

U.S. 438, 447 n.7 (1972). 138See Levy v. Louisiana, 391 U.S. 68 (1968) (strict review); Labine v. Vincent,

401 U.S. 532 (1971) (lenient review); Weber v. Aetna Casualty & Surety Co., 406

U.S. 164 (1972) (modified strict review). 139 Cf. McDonald v. Board of Election Comm’rs, 394 U.S. 802, 807 (1969); Bullock v. Carter, 405 U.S. 134 (1972). See Shapiro v. Thompson, 394 U.S. 618, 658–

59 (1969) (Justice Harlan dissenting). But cf. Lindsey v. Normet, 405 U.S. 56 (1972);

Dandridge v. Williams, 397 U.S. 471 (1970).

because no ‘‘overriding statutory purpose’’ 131 was shown and they

were not necessary to some ‘‘legitimate overriding purpose.’’ 132 ‘‘A

racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary

justification.’’ 133 Remedial racial classifications, that is, the development of ‘‘affirmative action’’ or similar programs that classify on

the basis of race for the purpose of ameliorating conditions resulting from past discrimination, are subject to more than traditional

review scrutiny, but whether the highest or some intermediate

standard is the applicable test is uncertain. 134 A measure which

does not draw a distinction explicitly on race but which does draw

a line between those who seek to use the law to do away with or

modify racial discrimination and those who oppose such efforts

does in fact create an explicit racial classification and is constitutionally suspect. 135

Toward the end of the Warren Court, there emerged a trend

to treat classifications on the basis of nationality or alienage as

suspect, 136 to accord sex classifications a somewhat heightened traditional review while hinting that a higher standard might be appropriate if such classifications passed lenient review, 137 and to

pass on statutory and administrative treatments of illegitimates inconsistently. 138 Language in a number of opinions appeared to suggest that poverty was a suspect condition, so that treating the poor

adversely might call for heightened equal protection review. 139
AMENDMENT 14—RIGHTS GUARANTEED 1811

140San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973). 141 Id. at 44–45. The Court asserted that only when there is an absolute deprivation of some right or interest because of inability to pay will there be strict scrutiny. Id. at 20. 142 E.g., United States v. Kras, 409 U.S. 434 (1973); Maher v. Roe, 432 U.S. 464

(1977); Harris v. McRae, 448 U.S. 297 (1980). 143 Craig v. Boren, 429 U.S. 190, 197 (1976). Justice Powell noted that he agreed

the precedents made clear that gender classifications are subjected to more critical

examination than when ‘‘fundamental’’ rights and ‘‘suspect classes’’ are absent, id.

at 210 (concurring), and added: ‘‘As is evident from our opinions, the Court has had

difficulty in agreeing upon a standard of equal protection analysis that can be applied consistently to the wide variety of legislative classifications. There are valid

reasons for dissatisfaction with the ‘two-tier’ approach that has been prominent in

the Court’s decisions in the past decade. Although viewed by many as a result-oriented substitute for more critical analysis, that approach—with its narrowly limited

‘upper tier’—now has substantial precedential support. As has been true of Reed and

its progeny, our decision today will be viewed by some as a ‘middle-tier’ approach.

While I would not endorse that characterization and would not welcome a further

subdividing of equal protection analysis, candor compels the recognition that the relatively deferential ‘rational basis’ standard of review normally applied takes on a

sharper focus when we address a gender-based classification. So much is clear from

our recent cases.’’ Id. at 210, n.*. Justice Stevens wrote that in his view the twotiered 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.

However, in a major evaluation of equal protection analysis

early in this period, Justice Powell for the Court utilized solely the

two-tier approach, determining that because the interests involved

did not occasion strict scrutiny the Court would thus decide the

case on minimum rationality standards. 140 Decisively rejected was

the contention that a de facto wealth classification, with an adverse

impact on the poor, was either a suspect classification or merited

some scrutiny other than the traditional basis, 141 a holding that

has several times been strongly reaffirmed by the Court. 142 But

the Court’s rejection of some form of intermediate scrutiny did not

long survive.

Without extended consideration of the issue of standards, the

Court more recently adopted an intermediate level of scrutiny, perhaps one encompassing several degrees of intermediate scrutiny.

Thus, gender classifications must, in order to withstand constitutional challenge, ‘‘serve important governmental objectives and

must be substantially related to achievement of those objectives.’’ 143 And classifications that disadvantage illegitimates are
1812 AMENDMENT 14—RIGHTS GUARANTEED

144Mills v. Habluetzel, 456 U.S. 91, 99 (1982); Parham v. Hughes, 441 U.S. 347

(1979); Lalli v. Lalli, 439 U.S. 259 (1978); Trimble v. Gordon, 430 U.S. 762 (1977).

In Mathews v. Lucas, 427 U.S. 495, 506 (1976), it was said that ‘‘discrimination

against illegitimates has never approached the severity or pervasiveness of the historic legal and political discrimination against women and Negroes.’’ Lucas sustained a statutory scheme virtually identical to the one struck down in Califano v.

Goldfarb, 430 U.S. 199 (1977), except that the latter involved sex while the former

involved illegitimacy. 145 Applying strict scrutiny, see, e.g., Sugarman v. Dougall, 413 U.S. 634 (1973);

Nyquist v. Mauclet, 432 U.S. 1 (1977). Applying lenient scrutiny in cases involving

restrictions on alien entry into the political community, see Foley v. Connelie, 435

U.S. 291 (1978); Ambach v. Norwick, 441 U.S. 68 (1979); Cabell v. Chavez-Salido,

454 U.S. 432 (1982). See also Plyler v. Doe, 457 U.S. 202 (1982). 146Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (upholding

mandatory retirement at age 50 for state police); Vance v. Bradley, 440 U.S. 93

(1979) (mandatory retirement at age 60 for foreign service officers); Gregory v.

Ashcroft, 111 S. Ct. 2395 (1991) (mandatory retirement at age 70 for state judges).

See also City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 442 (1985) (holding that a lower court ‘‘erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation’’). 147 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); See discussion supra pp. 1805–09. 148Kramer v. Union Free School Dist., 395 U.S. 621, 627 (1969); Shapiro v.

Thompson, 394 U.S. 618, 638 (1969).

subject to a similar though less exacting scrutiny of purpose and

fit. 144 This period also saw a withdrawal of the Court from the

principle that alienage is always a suspect classification, so that

some discriminations against aliens based on the nature of the political order, rather than economics or social interests, need pass

only the lenient review standard. 145

Expansion of the characteristics which when used as a basis

for classification must be justified by a higher showing than ordinary economic classifications has so far been resisted, the Court

holding, for example, that age classifications are neither suspect

nor entitled to intermediate scrutiny. 146 While resisting creation of

new suspect or ‘‘quasi-suspect’’ classifications, however, the Court

may nonetheless apply the Royster Guano rather than the Lindsley

standard of rationality. 147

The other phase of active review of classifications holds that

when certain fundamental liberties and interests are involved, government classifications which adversely affect them must be justified by a showing of a compelling interest necessitating the classification and by a showing that the distinctions are required to further the governmental purpose. The effect of applying the test, as

in the other branch of active review, is to deny to legislative judgments the deference usually accorded them and to dispense with

the general presumption of constitutionality usually given state

classifications. 148
AMENDMENT 14—RIGHTS GUARANTEED 1813

149 Id. at 660 (Justice Harlan dissenting). 150 316 U.S. 535, 541 (1942). 151 Reynolds v. Sims, 377 U.S. 533, 562 (1964). 152 Carrington v. Rash, 380 U.S. 89 (1965); Harper v. Virginia Bd. of Elections,

383 U.S. 663 (1966); Williams v. Rhodes, 393 U.S. 23 (1968). 153 394 U.S. 618, 627, 634, 638 (1969). 154Kramer 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). 155This indefiniteness has been a recurring theme in dissents. E.g., Shapiro v.

Thompson, 394 U.S. 618, 655 (1969) (Justice Harlan); Weber v. Aetna Casualty &

Surety Co., 406 U.S. 164, 177 (1972) (Justice Rehnquist). 156 E.g., Dunn v. Blumstein, 405 U.S. 330 (1972). 157 E.g., Shapiro v. Thompson, 394 U.S. 618 (1969). 158 E.g., Tate v. Short, 401 U.S. 395 (1971). 159Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942). 160San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973).

It is thought 149 that the ‘‘fundamental right’’ theory had its

origins in Skinner v. Oklahoma ex rel. Williamson, 150 in which the

Court subjected to ‘‘strict scrutiny’’ a state statute providing for

compulsory sterilization of habitual criminals, such scrutiny being

thought necessary because the law affected ‘‘one of the basic civil

rights.’’ In the apportionment decisions, Chief Justice Warren observed that ‘‘since the right to exercise the franchise in a free and

unimpaired manner is preservative of other basic civil and political

rights, any alleged infringement of the right of citizens to vote

must be carefully and meticulously scrutinized.’’ 151 A stiffening of

the traditional test could be noted in the opinion of the Court striking down certain restrictions on voting eligibility 152 and the phrase

‘‘compelling state interest’’ was used several times in Justice Brennan’s opinion in Shapiro v. Thompson. 153 Thereafter, the phrase

was used in several voting cases in which restrictions were voided,

and the doctrine was asserted in other cases. 154

While no opinion of the Court attempted to delineate the process by which certain ‘‘fundamental’’ rights were differentiated from

others, 155 it was evident from the cases that the right to vote, 156

the right of interstate travel, 157 the right to be free of wealth distinctions in the criminal process, 158 and the right of procreation 159

were at least some of those interests that triggered active review

when de jure or de facto official distinctions were made with respect to them. This branch of active review the Court also sought

to rationalize and restrict in Rodriguez, 160 which involved both a

claim of de facto wealth classifications being suspect and a claim

that education was a fundamental interest so that affording less of

it to people because they were poor activated the compelling state

interest standard. The Court readily agreed that education was an

important value in our society. ‘‘But the importance of a service

performed by the State does not determine whether it must be re-
1814 AMENDMENT 14—RIGHTS GUARANTEED

161 Id. at 30, 33–34. But see id. at 62 (Justice Brennan dissenting), 70, 110–17

(Justices Marshall and Douglas dissenting). 162Zobel 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). 163Zablocki v. Redhail, 434 U.S. 374 (1978). 164Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980). 165 E.g., Jiminez v. Weinberger, 417 U.S. 628 (1974) (illegitimacy); Nyquist v.

Mauclet, 432 U.S. 1 (1977) (alienage); Califano v. Goldfarb, 430 U.S. 199 (1977)

(sex).166 457 U.S. 202 (1982).

garded as fundamental for purposes of examination under the

Equal Protection Clause. . . . [T]he answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed

by the Constitution.’’ 161 A right to education is not expressly protected by the Constitution, continued the Court, and it was unwilling to find an implied right because of its undoubted importance.

But just as Rodriguez was unable to prevent the Court’s adoption of a ‘‘three-tier’’ or ‘‘sliding-tier’’ standard of review in the first

phase of the active-review doctrine, so it did not by stressing the

requirement that an interest be expressly or impliedly protected by

the Constitution prevent the addition of other interests to the list

of ‘‘fundamental’’ interests. The difficulty was that the Court decisions on the right to vote, the right to travel, the right to procreate,

as well as others, premise the constitutional violation to be of the

equal protection clause, which does not itself guarantee the right

but prevents the differential governmental treatment of those attempting to exercise the right. 162 Thus, state limitation on the

entry into marriage was soon denominated an incursion on a fundamental right which required a compelling justification. 163 While

denials of public funding of abortions were held to implicate no fundamental interest—abortion being a fundamental interest—and no

suspect classification—because only poor women needed public

funding 164—other denials of public assistance because of illegitimacy, alienage, or sex have been deemed governed by the same

standard of review as affirmative harms imposed on those

grounds. 165 And in Plyler v. Doe, 166 the complete denial of education to the children of illegal aliens was found subject to intermediate scrutiny and invalidated.

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.
AMENDMENT 14—RIGHTS GUARANTEED 1815

167See 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). 168Washington 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). 169The 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).

Testing Facially Neutral Classifications Which Impact on

Minorities

A classification expressly upon the basis of race triggers strict

scrutiny and ordinarily results in its invalidation; similarly, a classification that facially makes a distinction on the basis of sex, or

alienage, or illegitimacy triggers the level of scrutiny appropriate

to it. A classification that is ostensibly neutral but is an obvious

pretext for racial discrimination or for discrimination on some

other forbidden basis is subject to heightened scrutiny and ordinarily invalidation. 167 But when it is contended that a law, which

is in effect neutral, has a disproportionately adverse effect upon a

racial minority or upon another group particularly entitled to the

protection of the equal protection clause, a much more difficult case

is presented.

It is necessary that one claiming harm through the disparate

or disproportionate impact of a facially neutral law prove intent or

motive to discriminate. ‘‘[A] law, neutral on its face and serving

ends otherwise within the power of government to pursue, is not

invalid under the Equal Protection Clause simply because it may

affect a greater proportion of one race than of another.’’ 168 In reliance upon a prior Supreme Court decision that had seemed to eschew motive or intent and to pinpoint effect as the key to a constitutional violation 169 and upon the Court’s decisions reading congressional civil rights enactments as providing that when employment practices disqualifying disproportionate numbers of blacks

are challenged, discriminatory purpose need not be proved, and
1816 AMENDMENT 14—RIGHTS GUARANTEED

170Griggs 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). 171See Washington v. Davis, 426 U.S. 229, 244 n.12 (1976) (listing and disapproving cases). Cases not cited by the Court included the Fifth Circuit’s wrestling

with the de facto/de jure segregation distinction. In Cisneros v. Corpus Christi

Indep. School Dist., 467 F.2d 142, 148–50 (5th Cir. 1972) (en banc), cert. denied, 413

U.S. 920 (1973), the court held that motive and purpose were irrelevant and the ‘‘de

facto and de jure nomenclature’’ to be ‘‘meaningless.’’ After the distinction was reiterated in Keyes v. Denver School District, 413 U.S. 189 (1973), the Fifth Circuit

adopted the position that a decisionmaker must be presumed to have intended the

probable, natural, or foreseeable consequences of his decision and thus that a school

board decision, whatever its facial motivation, that results in segregation is intentional in the constitutional sense. United States v. Texas Educ. Agency, 532 F.2d

380 (5th Cir.), vacated and remanded for reconsideration in light of Washington v.

Davis, 429 U.S. 990 (1976), modified and adhered to, 564 F.2d 162, reh. denied, 579

F.2d 910 (5th Cir. 1977–78), cert denied, 443 U.S. 915 (1979). See also United States

v. Texas Educ. Agency, 600 F.2d 518 (5th Cir. 1979). This form of analysis was,

however, substantially cabined in Massachusetts Personnel Adm’r v. Feeney, 442

U.S. 256, 278–80 (1979), although foreseeability as one kind of proof was acknowledged by Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464–65 (1979). 172Washington v. Davis, 426 U.S. 229, 242 (1976).

that it is an insufficient response to demonstrate some rational

basis for the challenged practices, 170 a number of lower federal

courts had developed in constitutional litigation a ‘‘disproportionate

impact’’ analysis under which a violation could be established upon

a showing that a statute or practice adversely affected a class without regard to discriminatory purpose, absent some justification

going substantially beyond what would be necessary to validate

most other classifications. 171 These cases were disapproved in

Davis; but the Court did note that ‘‘an invidious discriminatory

purpose may often be inferred from the totality of the relevant

facts, including the fact, if it be true, that the law bears more heavily on one race than another. It is also not infrequently true that

the discriminatory impact . . . may for all practical purposes demonstrate unconstitutionality because in various circumstances the

discrimination is very difficult to explain on nonracial grounds.’’ 172

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
AMENDMENT 14—RIGHTS GUARANTEED 1817

173 Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S.

252 (1977). 174 Id. at 265–66, 270 n.21. See also Mt. Healthy City Bd. of Educ. v. Doyle, 429

U.S. 274, 284–87 (1977) (once plaintiff shows defendant acted from impermissible

motive in not rehiring him, burden shifts to defendant to show result would have

been same in the absence of that motive; constitutional violation not established

merely by showing of wrongful motive); Hunter v. Underwood, 471 U.S. 222 (1985)

(circumstances of enactment made it clear that state constitutional amendment requiring disenfranchisement for crimes involving moral turpitude had been adopted

for purpose of racial discrimination, even though it was realized that some poor

whites would also be disenfranchised thereby). 175 Arlington Heights, supra, at 266. 176 Id. at 267–68.

in some detail how inquiry into motivation would work. 173 First,

a plaintiff is not required to prove that an action rested solely on

discriminatory purpose; establishing ‘‘a discriminatory purpose’’

among permissible purposes shifts the burden to the defendant to

show that the same decision would have resulted absent the impermissible motive. 174 Second, determining whether a discriminatory

purpose was a motivating factor ‘‘demands a sensitive inquiry into

such circumstantial and direct evidence of intent as may be available.’’ Impact provides a starting point and ‘‘[s]ometimes a clear

pattern, unexplainable on grounds other than race, emerges from

the effect of the state action even when the governing legislation

appears neutral on its face,’’ but this is a rare case. 175 In the absence of such a stark pattern, a court will look to such factors as

the ‘‘historical background of the decision,’’ especially if there is a

series of official discriminatory actions. The specific sequence of

events may shed light on purpose, as would departures from normal procedural sequences or from substantive considerations usually relied on in the past to guide official actions. Contemporary

statements of decisionmakers may be examined, and ‘‘[i]n some extraordinary instances the members might be called to the stand at

trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege.’’ 176 In most circumstances, a court is to look to the totality

of the circumstances to ascertain intent.

Strengthening of the intent standard was evidenced in a decision sustaining against sex discrimination challenge a state law

giving an absolute preference in civil service hiring to veterans.

Veterans who obtain at least a passing grade on the relevant examination may exercise the preference at any time and as many times

as they wish and are ranked ahead of all nonveterans, no matter

what their score. The lower court observed that the statutory and

administrative exclusion of women from the armed forces until the

recent past meant that virtually all women were excluded from

state civil service positions and held that results so clearly foreseen
1818 AMENDMENT 14—RIGHTS GUARANTEED

177Massachusetts 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. 178 446 U.S. 55 (1980). Also decided by the plurality was that discriminatory

purpose is a requisite showing to establish a violation of the Fifteenth Amendment

and of the equal protection clause in the ‘‘fundamental interest’’ context, vote dilution, rather than just in the suspect classification context. 179White v. Regester, 412 U.S. 755 (1972), was the prior case. See also

Whitcomb v. Chavis, 403 U.S. 124 (1971). Justice White, the author of Register, dissented in Mobile, supra, 446 U.S. 94, on the basis that ‘‘the totality of the facts relied upon by the District Court to support its inference of purposeful discrimination

is even more compelling than that present in White v. Register.’’ Justice Blackmun,

id. at 80, and Justices Brennan and Marshall, agreed with him as alternate holdings, id. at 94, 103. 180 Id. at 65–74.

could not be said to be unintended. Reversing, the Supreme Court

found that the veterans preference law was not overtly or covertly

gender based; too many men are nonveterans to permit such a conclusion and there are women veterans. That the preference implicitly incorporated past official discrimination against women was

held not to detract from the fact that rewarding veterans for their

service to their country was a legitimate public purpose. Acknowledging that the consequences of the preference were foreseeable,

the Court pronounced this fact insufficient to make the requisite

showing of intent. ‘‘‘Discriminatory purpose’ . . . implies more than

intent as volition or intent as awareness of consequences. . . . It

implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in

spite of,’ its adverse effects upon an identifiable group.’’ 177

Moreover, in City of Mobile v. Bolden 178 a plurality of the

Court apparently attempted to do away with the totality of circumstances test and to evaluate standing on its own each of the

factors offered to show a discriminatory intent. At issue was the

constitutionality of the use of multi-member electoral districts to

select the city commission. A prior decision had invalidated a

multi-member districting system as discriminatory against blacks

and Hispanics, without considering whether its ruling was premised on discriminatory purpose or adverse impact but listing and

weighing a series of factors the totality of which caused the Court

to find invidious discrimination. 179 But in the plurality opinion in

Mobile, each of the factors, viewed ‘‘alone,’’ was deemed insufficient

to show purposeful discrimination. 180 Moreover, the plurality suggested that some of the factors thought to be derived from its

precedents and forming part of the totality test in opinions of the
AMENDMENT 14—RIGHTS GUARANTEED 1819

181 Id. at 73–74. The principal formulation of the test was in Zimmer v.

McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973), aff’d on other grounds sub nom.

East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 (1976), and its components

are thus frequently referred to as the Zimmer factors. 182 By the Voting Rights Act Amendments of 1982, P.L. 97–205, 96 Stat. 131,

42 U.S.C. § 1973 (as amended), see S. Rep. No. 417, 97th Congress, 2d sess. 27–28

(1982), Congress proscribed a variety of electoral practices ‘‘which results’’ in a denial or abridgment of the right to vote, and spelled out in essence the Zimmer factors as elements of a ‘‘totality of the circumstances’’ test. 183 458 U.S. 613 (1982). The decision, handed down within days of final congressional passage of the Voting Rights Act Amendments, was written by Justice White

and joined by Chief Justice Burger and Justices Brennan, Marshall, Blackmun, and

O’Connor. Justices Powell and Rehnquist dissented, id. at 628, as did Justice Stevens. Id. at 631. 184 Id. at 618–22 (describing and disagreeing with the Mobile plurality, which

had used the phrase at 446 U.S. 74). The Lodge Court approved the prior reference

that motive analysis required an analysis of ‘‘such circumstantial and direct evidence’’ as was available. Id., 618 (quoting Arlington Heights, 429 U.S. at 266). 185The Court confirmed the Mobile analysis that the ‘‘fundamental interest’’

side of heightened equal protection analysis requires a showing of intent when the

criteria of classification are neutral and did not reach the Fifteenth Amendment

issue in this case. Id. at 619 n. 6. 186 Id. at 618 (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)). 187 Id. at 623–24.

lower federal courts—such as minority access to the candidate selection process, governmental responsiveness to minority interests,

and the history of past discrimination—were of quite limited significance in determining discriminatory intent. 181 But, contemporaneously with Congress’ statutory rejection of the Mobile plurality standards, 182 the Court, in Rogers v. Lodge, 183 appeared to disavow much of Mobile and to permit the federal courts to find discriminatory purpose on the basis of ‘‘circumstantial evidence’’ 184

that is more reminiscent of pre- Washington v. Davis cases than of

the more recent decisions.

Rogers v. Lodge was also a multimember electoral district case

brought under the equal protection clause 185 and the Fifteenth

Amendment. The fact that the system operated to cancel out or dilute black voting strength, standing alone, was insufficient to condemn it; discriminatory intent in creating or maintaining the system was necessary. But direct proof of such intent is not required.

‘‘[A]n invidious purpose may often be inferred from the totality of

the relevant facts, including the fact, if it is true, that the law

bears more heavily on one race than another.’’ 186 Turning to the

lower court’s enunciation of standards, the Court approved the

Zimmer formulation. The fact that no black had ever been elected

in the county, in which blacks were a majority of the population

but a minority of registered voters, was ‘‘important evidence of purposeful exclusion.’’ 187 Standing alone this fact was not sufficient,

but a historical showing of past discrimination, of systemic exclusion of blacks from the political process as well as educational seg-
1820 AMENDMENT 14—RIGHTS GUARANTEED

188 Id. at 624–627. The Court also noted the existence of other factors showing

the tendency of the system to minimize the voting strength of blacks, including the

large size of the jurisdiction and the maintenance of majority vote and single-seat

requirements and the absence of residency requirements.

189 Castaneda v. Partida, 430 U.S. 482 (1977). The decision was 5-to–4, Justice

Blackmun writing the opinion of the Court and Chief Justice Burger and Justices

Stewart, Powell, and Rehnquist dissenting. Id. at 504–507.

190 Id. at 493–94. This had been recognized in Washington v. Davis, 426 U.S.

229, 241 (1976), and Village of Arlington Heights v. Metropolitan Housing Dev.

Corp., 429 U.S. 252, 266 n.13 (1977).

191 Castaneda v. Partida, 430 U.S. 482, 494, 497–99 (1977).

regation and discrimination, combined with continued unresponsiveness of elected officials to the needs of the black community, indicated the presence of discriminatory motivation. The Court also

looked to the ‘‘depressed socio-economic status’’ of the black population as being both a result of past discrimination and a barrier

to black access to voting power. 188 As for the district court’s application of the test, the Court reviewed it under the deferential

‘‘clearly erroneous’’ standard and affirmed it.

The Court in a jury discrimination case has also seemed to

allow what it had said in Davis and Arlington Heights it would not

permit. 189 Noting that disproportion alone is insufficient to establish a violation, the Court nonetheless held that plaintiff’s showing

that 79 percent of the county’s population was Spanish-surnamed

while jurors selected in recent years ranged from 39 to 50 percent

Spanish-surnamed was sufficient to establish a prima facie case of

discrimination. Several factors probably account for the difference.

First, the Court has long recognized that discrimination in jury selection can be inferred from less of a disproportion than is needed

to show other discriminations, in major part because if jury selection is truly random any substantial disproportion reveals the presence of an impermissible factor, whereas most official decisions are

not random. 190 Second, the jury selection process was ‘‘highly subjective’’ and thus easily manipulated for discriminatory purposes,

unlike the process in Davis and Arlington Heights which was regularized and open to inspection. 191 Thus, jury cases are likely to

continue to be special cases and in the usual fact situation, at least

where the process is open, plaintiffs will bear a heavy and substantial burden in showing discriminatory racial and other animus.
AMENDMENT 14—RIGHTS GUARANTEED 1821

192Davidson v. City of New Orleans, 96 U.S. 97, 106 (1878). 193Philadelphia Fire Ass’n v. New York, 119 U.S. 110 (1886); Santa Clara

County v. Southern Pacific R.R., 118 U.S. 394 (1886). 194 Bell’s Gap R.R. v. Pennsylvania, 134 U.S. 232, 237 (1890) (emphasis supplied). 195 Id. The State ‘‘may, if it chooses, exempt certain classes of property from any

taxation at all, such as churches, libraries, and the property of charitable institutions. It may impose different specific taxes upon various trades and professions,

and may vary the rates of excise upon various products; it may tax real estate and

personal property in a different manner; it may tax visible property only, and not

tax securities for payment of money; it may allow deductions for indebtedness, or

not allow them. All such regulations, and those of like character, so long as they

proceed within reasonable limits and general usage, are within the discretion of the

state legislature, or the people of the State in framing their Constitution.’’ See

Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973); Kahn v. Shevin,

416 U.S. 351 (1974); and City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369

(1974). 196Louisville 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).

TRADITIONAL EQUAL PROTECTION:

ECONOMIC REGULATION AND RELATED

EXERCISES OF THE POLICE POWER

Taxation

At the outset, the Court did not regard the equal protection

clause as having any bearing on taxation. 192 It soon, however, took

jurisdiction of cases assailing specific tax laws under this provision, 193 and in 1890 it cautiously conceded that ‘‘clear and hostile

discriminations against particular persons and classes, especially

such as are of an unusual character, unknown to the practice of

our government, might be obnoxious to the constitutional prohibition.’’ 194 But it observed that the equal protection clause ‘‘was not

intended to compel the States to adopt an iron rule of equal taxation’’ and propounded some conclusions valid today. 195 In succeeding years the clause has been invoked but sparingly to invalidate

state levies. In the field of property taxation, inequality has been

condemned only in two classes of cases: (1) discrimination in assessments, and (2) discrimination against foreign corporations. In

addition, there are a handful of cases invalidating, because of inequality, state laws imposing income, gross receipts, sales and license taxes.

Classification for Purpose of Taxation.—The power of the

State to classify for purposes of taxation is ‘‘of wide range and flexibility.’’ 196 A State may adjust its taxing system in such a way as
1822 AMENDMENT 14—RIGHTS GUARANTEED

Coal: a tax of 2 1/2 percent on anthracite but not on bituminous coal. Heisler

v. Thomas Colliery Co., 260 U.S. 245 (1922). Gasoline: a graduated severance tax

on oils sold primarily for their gasoline content, measured by resort to Baume gravity. Ohio Oil Co. v. Conway, 281 U.S. 146 (1930); Exxon Corp. v. Eagerton, 462 U.S.

176 (1983) (prohibition on pass-through to consumers of oil and gas severance tax).

Chain stores: a privilege tax graduated according to the number of stores maintained, Tax Comm’rs v. Jackson, 283 U.S. 527 (1931); Fox v. Standard Oil Co., 294

U.S. 87 (1935); a license tax based on the number of stores both within and without

the State, Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412 (1937) (distinguishing Louis K. Liggett Co. v. Lee, 288 U.S. 517 (1933)).

Electricity: municipal systems may be exempted, Puget Sound Co. v. Seattle,

291 U.S. 619 (1934); that portion of electricity produced which is used for pumping

water for irrigating lands may be exempted, Utah Power & Light Co. v. Pfost, 286

U.S. 165 (1932).

Insurance companies: license tax measured by gross receipts upon domestic life

insurance companies from which fraternal societies having lodge organizations and

insuring lives of members only are exempt, and similar foreign corporations are subject to a fixed and comparatively slight fee for the privilege of doing local business

of the same kind. Northwestern Life Ins. Co. v. Wisconsin, 247 U.S. 132 (1918).

Oleomargarine: classified separately from butter. Magnano Co. v. Hamilton, 292

U.S. 40 (1934).

Peddlers: classified separately from other vendors. Caskey Baking Co. v. Virginia, 313 U.S. 117 (1941).

Public utilities: a gross receipts tax at a higher rate for railroads than for other

public utilities, Ohio Tax Cases, 232 U.S. 576 (1914); a gasoline storage tax which

places a heavier burden upon railroads than upon common carriers by bus, Nashville C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933); a tax on railroads measured

by gross earnings from local operations, as applied to a railroad which received a

larger net income than others from the local activity of renting, and borrowing cars,

Illinois Cent. R.R. v. Minnesota, 309 U.S. 157 (1940); a gross receipts tax applicable

only to public utilities, including carriers, the proceeds of which are used for relieving the unemployed, New York Rapid Transit Corp. v. New York, 303 U.S. 573

(1938).

Wine: exemption of wine from grapes grown in the State while in the hands of

the producer, Cox v. Texas, 202 U.S. 446 (1906).

Laws imposing miscellaneous license fees have been upheld as follows:

Cigarette dealers: taxing retailers and not wholesalers. Cook v. Marshall County, 196 U.S. 261 (1905).

Commission merchants: requirements that dealers in farm products on commission procure a license, Payne v. Kansas, 248 U.S. 112 (1918).

Elevators and warehouses: license limited to certain elevators and warehouses

on right-of-way of railroad, Cargill Co. v. Minnesota, 180 U.S. 452 (1901); a license

tax applicable only to commercial warehouses where no other commercial

warehousing facilities in township subject to tax, Independent Warehouses v.

Scheele, 331 U.S. 70 (1947).

Laundries: exemption from license tax of steam laundries and women engaged

in the laundry business where not more than two women are employed. Quong

Wing v. Kirkendall, 223 U.S. 59 (1912).

Merchants: exemption from license tax measured by amount of purchases, of

manufacturers within the State selling their own product. Armour & Co. v. Virginia,

246 U.S. 1 (1918).

Sugar refineries: exemption from license applicable to refiners of sugar and molasses of planters and farmers grinding and refining their own sugar and molasses.

American Sugar Refining Co. v. Louisiana, 179 U.S. 89 (1900).

Theaters: license graded according to price of admission. Metropolis Theatre Co.

v. Chicago, 228 U.S. 61 (1913).

Wholesalers of oil: occupation tax on wholesalers in oil not applicable to wholesalers in other products. Southwestern Oil Co. v. Texas, 217 U.S. 114 (1910).
AMENDMENT 14—RIGHTS GUARANTEED 1823

197Quong 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). 198Puget Sound Co. v. Seattle, 291 U.S. 619, 625 (1934). See City of Pittsburgh

v. Alco Parking Corp., 417 U.S. 369 (1974). 199 Colgate v. Harvey, 296 U.S. 404, 422 (1935). 200Southern Ry. v. Greene Co., 216 U.S. 400, 417 (1910); Quaker City Cab Co.

v. Pennsylvania, 277 U.S. 389, 400 (1928). 201Keeney v. New York, 222 U.S. 525, 536 (1912); Tax Comm’rs v. Jackson, 283

U.S. 527, 538 (1931). 202Giozza v. Tierman, 148 U.S. 657, 662 (1893). 203Louisville 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). 204Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935). See also Valentine v.

Great Atlantic & Pacific Tea Co., 299 U.S. 32 (1936). 205Louis K. Liggett Co. v. Lee, 288 U.S. 517 (1933). 206Quaker 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). 207Tax Comm’rs v. Jackson, 283 U.S. 527, 537 (1931). 208 Colgate v. Harvey, 296 U.S. 404, 422 (1935). 209Darnell v. Indiana, 226 U.S. 390, 398 (1912); Farmers Bank v. Minnesota,

232 U.S. 516, 531 (1914).

to favor certain industries or forms of industry 197 and may tax different types of taxpayers differently, despite the fact that they compete. 198 It does not follow, however, that because ‘‘some degree of

inequality from the nature of things must be permitted, gross inequality must also be allowed.’’ 199 Classification may not be arbitrary. It must be based on a real and substantial difference 200 and

the difference need not be great or conspicuous, 201 but there must

be no discrimination in favor of one as against another of the same

class. 202 Also, discriminations of an unusual character are scrutinized with special care. 203 A gross sales tax graduated at increasing rates with the volume of sales, 204 a heavier license tax on each

unit in a chain of stores where the owner has stores located in

more than one county, 205 and a gross receipts tax levied on corporations operating taxicabs, but not on individuals, 206 have been

held to be a repugnant to the equal protection clause. But it is not

the function of the Court to consider the propriety or justness of

the tax, to seek for the motives and criticize the public policy which

prompted the adoption of the statute. 207 If the evident intent and

general operation of the tax legislation is to adjust the burden with

a fair and reasonable degree of equality, the constitutional requirement is satisfied. 208

One not within the class claimed to be discriminated against

cannot raise the question of constitutionality of a statute on the

ground that it denies equal protection of the law. 209 If a tax applies to a class which may be separately taxed, those within the

class may not complain because the class might have been more
1824 AMENDMENT 14—RIGHTS GUARANTEED

210Morf v. Bingaman, 298 U.S. 407, 413 (1936). 211 Baltic Mining Co. v. Massachusetts, 231 U.S. 68, 88 (1913). See also Cheney

Brothers Co. v. Massachusetts, 246 U.S. 147, 157 (1918). 212Philadelphia Fire Ass’n v. New York, 119 U.S. 110, 119 (1886). 213 Hanover Fire Ins. Co. v. Harding, 272 U.S. 494, 511 (1926). 214Southern Ry. v. Green, 216 U.S. 400, 418 (1910). 215 Concordia Ins. Co. v. Illinois, 292 U.S. 535 (1934). 216Lincoln 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. 217Wheeling Steel Corp. v. Glander, 337 U.S. 562, 571, 572 (1949). 218 393 U.S. 117 (1968).

aptly defined nor because others, not of the class, are taxed improperly. 210

Foreign Corporations and Nonresidents.—The equal protection clause does not require identical taxes upon all foreign and

domestic corporations in every case. 211 In 1886, a Pennsylvania

corporation previously licensed to do business in New York challenged an increased annual license tax imposed by that State in retaliation for a like tax levied by Pennsylvania against New York

corporations. This tax was held valid on the ground that the State,

having power to exclude entirely, could change the conditions of admission for the future and could demand the payment of a new or

further tax as a license fee. 212 Later cases whittled down this rule

considerably. The Court decided that ‘‘after its admission, the foreign corporation stands equal and is to be classified with domestic

corporations of the same kind,’’ 213 and that where it has acquired

property of a fixed and permanent nature in a State, it cannot be

subjected to a more onerous tax for the privilege of doing business

than is imposed on domestic corporations. 214 A state statute taxing

foreign corporations writing fire, marine, inland navigation and

casualty insurance on net receipts, including receipts from casualty

business, was held invalid under the equal protection clause where

foreign companies writing only casualty insurance were not subject

to a similar tax. 215 Later, the doctrine of Philadelphia Fire Association v. New York was revived to sustain an increased tax on

gross premiums which was exacted as an annual license fee from

foreign but not from domestic corporations. 216 Even though the

right of a foreign corporation to do business in a State rests on a

license, yet the equal protection clause is held to insure it equality

of treatment, at least so far as ad valorem taxation is concerned. 217

The Court, in WHYY v. Glassboro 218 held that a foreign nonprofit

corporation licensed to do business in the taxing State is denied

equal treatment in violation of the equal protection clause where

an exemption from state property taxes granted to domestic cor-
AMENDMENT 14—RIGHTS GUARANTEED 1825

219 470 U.S. 869, 878 (1985). The vote was 5–4, with Justice Powell’s opinion

for the Court being joined by Chief Justice Burger and by Justices White,

Blackmun, and Stevens. Justice O’Connor’s dissent was joined by Justices Brennan,

Marshall, and Rehnquist. 220 470 U.S. at 880. 221The 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). 222F.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. 223Shaffer v. Carter, 252 U.S. 37, 56, 57 (1920); Travis v. Yale & Towne Mfg.

Co., 252 U.S. 60, 75, 76 (1920).

porations is denied to a foreign corporation solely because it was

organized under the laws of a sister State and where there is no

greater administrative burden in evaluating a foreign corporation

than a domestic corporation in the taxing State.

State taxation of insurance companies, insulated from Commerce Clause attack by the McCarran-Ferguson Act, must pass

similar hurdles under the Equal Protection Clause. In Metropolitan

Life Ins. Co. v. Ward, 219 the Court concluded that taxation favoring

domestic over foreign corporations ‘‘constitutes the very sort of parochial discrimination that the Equal Protection Clause was intended to prevent.’’ Rejecting the assertion that it was merely imposing ‘‘Commerce Clause rhetoric in equal protection clothing,’’ the

Court explained that the emphasis is different even though the result in some cases will be the same: the Commerce Clause measures the effects which otherwise valid state enactments have on

interstate commerce, while the Equal Protection Clause merely requires a rational relation to a valid state purpose. 220 However, the

Court’s holding that the discriminatory purpose was invalid under

equal protection analysis would also be a basis for invalidation

under a different strand of Commerce Clause analysis. 221

Income Taxes.—A state law which taxes the entire income of

domestic corporations which do business in the State, including

that derived within the State, while exempting entirely the income

received outside the State by domestic corporations which do no

local business, is arbitrary and invalid. 222 In taxing the income of

a nonresident, there is no denial of equal protection in limiting the

deduction of losses to those sustained within the State, although

residents are permitted to deduct all losses, wherever incurred. 223

A retroactive statute imposing a graduated tax at rates different

from those in the general income tax law, on dividends received in
1826 AMENDMENT 14—RIGHTS GUARANTEED

224Welch v. Henry, 305 U.S. 134 (1938). 225Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 288, 300 (1898). 226 Billings v. Illinois, 188 U.S. 97 (1903). 227 Campbell v. California, 200 U.S. 87 (1906). 228Salomon v. State Tax Comm’n, 278 U.S. 484 (1929). 229 Board of Educ. v. Illinois, 203 U.S. 553 (1906). 230Maxwell v. Bugbee, 250 U.S. 525 (1919). 231 Continental Baking Co. v. Woodring, 286 U.S. 352 (1932). 232Dixie Ohio Express Co. v. State Revenue Comm’n, 306 U.S. 72, 78 (1939). 233 Alward v. Johnson, 282 U.S. 509 (1931).

a prior year which were deductible from gross income under the

law in effect when they were received, does not violate the equal

protection clause. 224

Inheritance Taxes.—There is no denial of equal protection in

prescribing different treatment for lineal relations, collateral kindred and unrelated persons, or in increasing the proportionate burden of the tax progressively as the amount of the benefit increases. 225 A tax on life estates where the remainder passes to lineal heirs is valid despite the exemption of life estates where the remainder passes to collateral heirs. 226 There is no arbitrary classification in taxing the transmission of property to a brother or sister, while exempting that to a son-in-law or daughter-in-law. 227

Vested and contingent remainders may be treated differently. 228

The exemption of property bequeathed to charitable or educational

institutions may be limited to those within the State. 229 In computing the tax collectible from a nonresident decedent’s property

within the State, a State may apply the pertinent rates to the

whole estate wherever located and take that proportion thereof

which the property within the State bears to the total; the fact that

a greater tax may result than would be assessed on an equal

amount of property if owned by a resident, does not invalidate the

result. 230

Motor Vehicle Taxes.—In demanding compensation for the

use of highways, a State may exempt certain types of vehicles, according to the purpose for which they are used, from a mileage tax

on carriers. 231 A state maintenance tax act, which taxes vehicle

property carriers for hire at greater rates than similar vehicles carrying property not for hire is reasonable, since the use of roads by

one hauling not for hire generally is limited to transportation of his

own property as an incident to his occupation and is substantially

less than that of one engaged in business as a common carrier. 232

A property tax on motor vehicles used in operating a stage line

that makes constant and unusual use of the highways may be

measured by gross receipts and be assessed at a higher rate than

taxes on property not so employed. 233 Common motor carriers of

freight operating over regular routes between fixed termini may be
AMENDMENT 14—RIGHTS GUARANTEED 1827

234 Bekins Van Lines v. Riley, 280 U.S. 80 (1929). 235Morf v. Bingaman, 298 U.S. 407 (1936). 236 Clark v. Paul Gray, Inc., 306 U.S. 583 (1939). 237 Carley & Hamilton v. Snook, 281 U.S. 66 (1930). 238 Aero Mayflower Transit Co. v. Georgia Public Serv. Comm’n, 295 U.S. 285

(1935). 239F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). 240Missouri v. Dockery, 191 U.S. 165 (1903). 241Kentucky Union Co. v. Kentucky, 219 U.S. 140, 161 (1911). 242 Charleston Fed. S. & L. Ass’n v. Alderson, 324 U.S. 182 (1945); Nashville

C. & St. L. Ry. v. Browning, 310 U.S. 362 (1940).

taxed at higher rates than other carriers, common and private. 234

A fee for the privilege of transporting motor vehicles on their own

wheels over the highways of the State for purpose of sale does not

violate the equal protection clause as applied to cars moving in

caravans. 235 The exemption from a tax for a permit to bring cars

into the State in caravans of cars moved for sale between zones in

the State is not an unconstitutional discrimination where it appears that the traffic subject to the tax places a much more serious

burden on the highways than that which is exempt. 236 Also sustained as valid have been exemptions of vehicles weighing less

than 3000 pounds from graduated registration fees imposed on carriers for hire, notwithstanding that the exempt vehicles, when loaded, may outweigh those taxed; 237 and exemptions from vehicle license taxes levied on private motor carriers of persons whose vehicles haul passengers and farm products between points not having

railroad facilities or farm and dairy products for producers thereof. 238

Property Taxes.—The State’s latitude of discretion is notably

wide in the classification of property for purposes of taxation and

the granting of partial or total exemption on the grounds of policy, 239 whether the exemption results from the terms of the statute

itself or the conduct of a state official implementing state policy. 240

A provision for the forfeiture of land for nonpayment of taxes is not

invalid because the conditions to which it applies exist only in a

part of the State. 241 Also, differences in the basis of assessment

are not invalid where the person or property affected might properly be placed in a separate class for purposes of taxation. 242 Early

cases drew the distinction between intentional and systematic discriminatory action by state officials in undervaluing some property

while taxing at full value other property in the same class—an action that could be invalidated under the equal protection clause—

and mere errors in judgment resulting in unequal valuation or

undervaluation—actions that did not support a claim of discrimina-
1828 AMENDMENT 14—RIGHTS GUARANTEED

243Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350 (1918); Raymond v. Chicago Traction Co., 207 U.S. 20, 35, 37 (1907); Coutler v. Louisville & Nashville R.R.,

196 U.S. 599 (1905). See also Chicago, B. & Q. Ry. v. Babcock, 204 U.S. 585 (1907). 244 488 U.S. 336 (1989). 245 Nordlinger v. Hahn, 112 S. Ct. 2326 (1992). 246 Id. at 2334–35. 247 Id. at 2333. 248Sioux City Bridge v. Dakota County, 260 U.S. 441, 446 (1923). 249 Hillsborough v. Cromwell, 326 U.S. 620, 623 (1946); Allegheny Pittsburgh

Coal Co. v. Webster County Comm’n, 488 U.S. 336 (1989). 250St. Louis-San Francisco Ry v. Middlekamp, 256 U.S. 226, 230 (1921). 251Memphis & Charleston Ry. v. Pace, 282 U.S. 241 (1931).

tion. 243 More recently, however, the Court in Allegheny Pittsburgh

Coal Co. v. Webster County Commission, 244 found a denial of equal

protection to property owners whose assessments, based on recent

purchase prices, ranged from 8 to 35 times higher than comparable

neighboring property for which the assessor failed over a 10-year

period to readjust appraisals. Then, only a few years later, the

Court upheld a California ballot initiative that imposed a quite

similar result: property that is sold is appraised at purchase price,

while assessments on property that has stayed in the same hands

since 1976 may rise no more that 2% per year. 245 Allegheny Pittsburgh was distinguished, the disparity in assessments being said

to result from administrative failure to implement state policy

rather than from implementation of a coherent state policy. 246

California’s acquisition-value system favoring those who hold on to

property over those who purchase and sell property was viewed as

furthering rational state interests in promoting ‘‘local neighborhood

preservation, continuity, and stability,’’ and in protecting reasonable reliance interests of existing homeowners. 247

An owner aggrieved by discrimination is entitled to have his

assessment reduced to the common level. 248 Equal protection is denied if a State does not itself remove the discrimination; it cannot

impose upon the person against whom the discrimination is directed the burden of seeking an upward revision of the assessment

of other members of the class. 249 A corporation whose valuations

were accepted by the assessing commission cannot complain that it

was taxed disproportionately, as compared with others, if the commission did not act fraudulently. 250

Special Assessment.—A special assessment is not discriminatory because apportioned on an ad valorem basis, nor does its validity depend upon the receipt of some special benefit as distinguished from the general benefit to the community. 251 Railroad

property may not be burdened for local improvements upon a basis

so wholly different from that used for ascertaining the contribution

demanded of individual owners as necessarily to produce manifest
AMENDMENT 14—RIGHTS GUARANTEED 1829

252Kansas City So. Ry. v. Road Imp. Dist. No. 6, 256 U.S. 658 (1921); Thomas

v. Kansas City So. Ry., 261 U.S. 481 (1923). 253 Road Imp. Dist. v. Missouri Pacific R.R., 274 U.S. 188 (1927). 254 Branson v. Bush, 251 U.S. 182 (1919). 255 Columbus & Greenville Ry. v. Miller, 283 U.S. 96 (1931). 256 Buck v. Bell, 274 U.S. 200, 208 (1927). 257McGowan v. Maryland, 366 U.S. 420, 425–26 (1961). 258 City of New Orleans v. Dukes, 427 U.S. 297 (1976). Upholding an ordinance

that banned all pushcart vendors from the French Quarter, except those in continuous operation for more than eight years, the Court summarized its method of decision here. ‘‘When local economic regulation is challenged solely as violating the

Equal Protection Clause, this Court consistently defers to legislative determinations

as to the desirability of particular statutory discriminations. . . . Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification

challenged be rationally related to a legitimate state interest. States are accorded

wide latitude in the regulation of their local economies under their police powers,

inequality. 252 A special highway assessment against railroads

based on real property, rolling stock, and other personal property

is unjustly discriminatory when other assessments for the same improvement are based on real property alone. 253 A law requiring the

franchise of a railroad to be considered in valuing its property for

apportionment of a special assessment is not invalid where the

franchises were not added as a separate personal property value to

the assessment of the real property. 254 In taxing railroads within

a levee district on a mileage basis, it is not necessarily arbitrary

to fix a lower rate per mile for those having less than 25 miles of

main line within the district than for those having more. 255

Police Power Regulation

Classification.—Justice Holmes’ characterization of the equal

protection clause as the ‘‘usual last refuge of constitutional arguments’’ 256 was no doubt made with the practice in mind of contestants tacking on an equal protection argument to a due process

challenge of state economic regulation. Few police regulations have

been held unconstitutional on this ground.

‘‘[T]he Fourteenth Amendment permits the States a wide scope

of discretion in enacting laws which affect some groups of citizens

differently than others. The constitutional safeguard is offended

only if the classification rests on grounds wholly irrelevant to the

achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the

fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’’ 257 The Court has made it clear

that only the totally irrational classification in the economic field

will be struck down, 258 and it has held that legislative classifica-
1830 AMENDMENT 14—RIGHTS GUARANTEED

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. 259The ‘‘grandfather’’ clause upheld in Dukes preserved the operations of two

concerns that had operated in the Quarter for 20 years. The classification was sustained on the basis of (1) the City Council proceeding step-by-step and eliminating

vendors of more recent vintage, (2) the Council deciding that newer businesses were

less likely to have built up substantial reliance interests in continued operation in

the Quarter, and (3) the Council believing that both ‘‘grandfathered’’ vending interests had themselves become part of the distinctive character and charm of the Quarter. Id. 305–06. See also Friedman v. Rogers, 440 U.S. 1, 17–18 (1979); United

States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 6 (1970). 260Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461–70 (1981). The

quoted phrase is at 466 (emphasis by Court). Purporting to promote the purposes

of resource conservation, easing solid waste disposal problems, and conserving energy, the legislature had banned plastic nonreturnable milk cartons but permitted

all other nonplastic nonreturnable containers, such as paperboard cartons. The state

court had thought the distinction irrational, but the Supreme Court thought the legislature could have believed a basis for the distinction existed. Courts will receive

evidence that a distinction is wholly irrational. United States v. Carolene Products

Co., 304 U.S. 144, 153–54 (1938).

Classifications under police regulations have been held valid as follows:

Advertising: discrimination between billboard and newpaper advertising of cigarettes, Packer Corp. v. Utah, 285 U.S. 105 (1932); prohibition of advertising signs

on motor vehicles, except when used in the usual business of the owner and not

used mainly for advertising, Fifth Ave. Coach Co. v. New York, 221 U.S. 467 (1911);

prohibition of advertising on motor vehicles except notices or advertising of products

of the owner, Railway Express Agency v. New York, 336 U.S. 106 (1949); prohibition

against sale of articles on which there is a representation of the flag for advertising

purposes, except newspapers, periodicals and books, Halter v. Nebraska, 205 U.S.

34 (1907).

Amusement: prohibition against keeping billiard halls for hire, except in case

of hotels having twenty-five or more rooms for use of regular guests. Murphy v.

California, 225 U.S. 623 (1912).

Attorneys: Kansas law and court regulations requiring resident of Kansas, licensed to practice in Kansas and Missouri and maintaining law offices in both

States, but who practices regularly in Missouri, to obtain local associate counsel as

a condition of appearing in a Kansas court. Martin v. Walton, 368 U.S. 25 (1961).

Two dissenters, Justices Douglas and Black, would sustain the requirement, if limited in application to an attorney who practiced only in Missouri.

tions that impact severely upon some businesses and quite favorably upon others may be saved through stringent deference to legislative judgment. 259 So deferential is the classification that it denies the challenging party any right to offer evidence to seek to

prove that the legislature is wrong in its conclusion that its classification will serve the purpose it has in mind, so long as the question is at least debatable and the legislature ‘‘could rationally have

decided’’ that its classification would foster its goal. 260
AMENDMENT 14—RIGHTS GUARANTEED 1831

Cattle: a classification of sheep, as distinguished from cattle, in a regulation restricting the use of public lands for grazing. Bacon v. Walker, 204 U.S. 311 (1907).

See also Omaechevarria v. Idaho, 246 U.S. 343 (1918).

Cotton gins: in a State where cotton gins are held to be public utilities and their

rates regulated, the granting of a license to a cooperative association distributing

profits ratably to members and nonmembers does not deny other persons operating

gins equal protection when there is nothing in the laws to forbid them to distribute

their net earnings among their patrons. Corporation Comm’n v. Lowe, 281 U.S. 431

(1930).

Debt adjustment business: operation only as incident to legitimate practice of

law. Ferguson v. Skrupa, 372 U.S. 726 (1963).

Eye glasses: law exempting sellers of ready-to-wear glasses from regulations forbidding opticians to fit or replace lenses without prescriptions from ophthalmologist

or optometrist and from restrictions on solicitation of sale of eye glasses by use of

advertising matter. Williamson v. Lee Optical Co., 348 U.S. 483 (1955).

Fish processing: stricter regulation of reduction of fish to flour or meal than of

canning. Bayside Fish Co. v. Gentry, 297 U.S. 422 (1936).

Food: bread sold in loaves must be of prescribed standard sizes, Schmidinger

v. Chicago, 226 U.S. 578 (1913); food preservatives containing boric acid may not

be sold, Price v. Illinois, 238 U.S. 446 (1915); lard not sold in bulk must be put up

in containers holding one, three or five pounds or some whole multiple thereof, Armour & Co. v. North Dakota, 240 U.S. 510 (1916); milk industry may be placed in

a special class for regulation, Lieberman v. Van De Carr, 199 U.S. 552 (1906); vendors producing milk outside city may be classified separately, Adams v. Milwaukee,

228 U.S. 572 (1913); producing and nonproducing vendors may be distinguished in

milk regulations, St. John v. New York, 201 U.S. 633 (1906); different minimum and

maximum milk prices may be fixed for distributors and storekeepers, Nebbia v. New

York, 291 U.S. 502 (1934); price differential may be granted for sellers of milk not

having a well advertised trade name, Borden’s Farm Products Co. v. Ten Eyck, 297

U.S. 251 (1936); oleomargarine colored to resemble butter may be prohibited, Capital City Dairy Co. v. Ohio, 183 U.S. 238 (1902); table syrups may be required to

be so labeled and disclose identity and proportion of ingredients, Corn Products Rfg.

Co. v. Eddy, 249 U.S. 427 (1919).

Geographical discriminations: legislation limited in application to a particular

geographical or political subdivision of a State, Ft. Smith Co. v. Paving Dist., 274

U.S. 387, 391 (1927); ordinance prohibiting a particular business in certain sections

of a municipality, Hadacheck v. Sebastian, 239 U.S. 394 (1915); statute authorizing

a municipal commission to limit the height of buildings in commercial districts to

125 feet and in other districts to 80 to 100 feet, Welch v. Swasey, 214 U.S. 91

(1909); ordinance prescribing limits in city outside of which no woman of lewd character shall dwell, L’Hote v. New Orleans, 177 U.S. 587, 595 (1900). And see North

v. Russell, 427 U.S. 328, 338 (1976).

Hotels: requirement that keepers of hotels having over fifty guests employ night

watchmen. Miller v. Strahl, 239 U.S. 426 (1915).

Insurance companies: regulation of fire insurance rates with exemption for

farmers mutuals, German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914); different

requirements imposed upon reciprocal insurance associations than upon mutual

companies, Hoopeston Canning Co. v. Cullen, 318 U.S. 313 (1943); prohibition

against life insurance companies or agents engaging in undertaking business, Daniel v. Family Ins. Co., 336 U.S. 220 (1949).

Intoxicating liquors: exception of druggist or manufacturers from regulation.

Lloyd v. Dollison, 194 U.S. 445 (1904); Eberle v. Michigan, 232 U.S. 700 (1914).

Landlord-tenant: requiring trial no later than six days after service of complaint

and limiting triable issues to the tenant’s default, provisions applicable in no other

legal action, under procedure allowing landlord to sue to evict tenants for

nonpayment of rent, inasmuch as prompt and peaceful resolution of the dispute is

proper objective and tenants have other means to pursue other relief. Lindsey v.

Normet, 405 U.S. 56 (1972).
1832 AMENDMENT 14—RIGHTS GUARANTEED

Lodging houses: requirement that sprinkler systems be installed in buildings of

nonfireproof construction is valid as applied to such a building which is safeguarded

by a fire alarm system, constant watchman service and other safety arrangements.

Queenside Hills Co. v. Saxl, 328 U.S. 80 (1946).

Markets: prohibition against operation of private market within six squares of

public market. Natal v. Louisiana, 139 U.S. 621 (1891).

Medicine: a uniform standard of professional attainment and conduct for all

physicians, Hurwitz v. North, 271 U.S. 40 (1926); reasonable exemptions from medical registration law. Watson v. Maryland, 218 U.S. 173 (1910); exemption of persons

who heal by prayer from regulations applicable to drugless physicians, Crane v.

Johnson, 242 U.S 339 (1917); exclusion of osteopathic physicians from public hospitals, Hayman v. Galveston, 273 U.S. 414 (1927); requirement that persons who

treat eyes without use of drugs be licensed as optometrists with exception for persons treating eyes by use of drugs, who are regulated under a different statute,

McNaughton v. Johnson, 242 U.S. 344 (1917); a prohibition against advertising by

dentists, not applicable to other professions, Semler v. Dental Examiners, 294 U.S.

608 (1935).

Motor vehicles: guest passenger regulation applicable to automobiles but not to

other classes of vehicles, Silver v. Silver, 280 U.S. 117 (1929); exemption of vehicles

from other States from registration requirement, Storaasli v. Minnesota, 283 U.S.

57 (1931); classification of driverless automobiles for hire as public vehicles, which

are required to procure a license and to carry liability insurance, Hodge Co. v. Cincinnati, 284 U.S. 335 (1932); exemption from limitations on hours of labor for drivers of motor vehicles of carriers of property for hire, of those not principally engaged

in transport of property for hire, and carriers operating wholly in metropolitan

areas, Welch Co. v. New Hampshire, 306 U.S. 79 (1939); exemption of busses and

temporary movements of farm implements and machinery and trucks making short

hauls from common carriers from limitations in net load and length of trucks,

Sproles v. Binford, 286 U.S. 374 (1932); prohibition against operation of uncertified

carriers, Bradley v. Public Utility Comm’n, 289 U.S. 92 (1933); exemption from regulations affecting carriers for hire, of persons whose chief business is farming and

dairying, but who occasionally haul farm and dairy products for compensation,

Hicklin v. Coney, 290 U.S. 169 (1933); exemption of private vehicles, street cars and

omnibuses from insurance requirements applicable to taxicabs, Packard v. Banton,

264 U.S. 140 (1924).

Peddlers and solicitors: a State may classify and regulate itinerant vendors and

peddlers, Emert v. Missouri, 156 U.S. 296 (1895); may forbid the sale by them of

drugs and medicines, Baccus v. Louisiana, 232 U.S. 334 (1914); prohibit drumming

or soliciting on trains for business for hotels, medical practitioners, and the like,

Williams v. Arkansas, 217 U.S. 79 (1910); or solicitation of employment to prosecute

or collect claims, McCloskey v. Tobin, 252 U.S. 107 (1920). And a municipality may

prohibit canvassers or peddlers from calling at private residences unless requested

or invited by the occupant to do so. Breard v. City of Alexandria, 341 U.S. 622

(1951).

Property destruction: destruction of cedar trees to protect apple orchards from

cedar rust, Miller v. Schoene, 276 U.S. 272 (1928).

Railroads: prohibition on operation on a certain street, Railroad Co. v. Richmond, 96 U.S. 521 (1878); requirement that fences and cattle guards and allow recovery of multiple damages for failure to comply, Missouri Pacific Ry. v. Humes, 115

U.S. 512 (1885); Minneapolis Ry. v. Beckwith, 129 U.S. 26 (1889); Minneapolis &

St. Louis Ry. v. Emmons, 149 U.S. 364 (1893); assessing railroads with entire expense of altering a grade crossing, New York & N.E. R.R. v. Bristol, 151 U.S. 556

(1894); liability for fire communicated by locomotive engines, St. Louis & S. F. Ry.

v. Mathews, 165 U.S. 1 (1897); required weed cutting; Missouri, Kan., & Tex. Ry.

v. May, 194 U.S. 267 (1904); presumption against a railroad failing to give prescribed warning signals, Atlantic Coast Line R.R. v. Ford, 287 U.S. 502 (1933); required use of locomotive headlights of a specified form and power, Atlantic Coast

Line Ry. v. Georgia, 234 U.S. 280 (1914); presumption that railroads are liable for
AMENDMENT 14—RIGHTS GUARANTEED 1833

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). 261 Hartford Ins. Co. v. Harrison, 301 U.S. 459 (1937). 262Smith v. Cahoon, 283 U.S. 553 (1931). 263Mayflower 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).

The Court has condemned a variety of statutory classifications

as failing to survive the rational basis test, although some of the

cases are of doubtful vitality today and some have been questioned.

Thus, the Court invalidated a statute which forbade stock insurance companies to act through agents who were their salaried employees but permitted mutual companies to operate in this manner. 261 A law which required private motor vehicle carriers to obtain certificates of convenience and necessity and to furnish security for the protection of the public was held invalid because of the

exemption of carriers of fish, farm, and dairy products. 262 The

same result befell a statute which permitted mill dealers without

well advertised trade names the benefit of a price differential but

which restricted this benefit to such dealers entering the business

before a certain date. 263 In a decision since overruled, the Court
1834 AMENDMENT 14—RIGHTS GUARANTEED

264Morey 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. 265 Holden v. Hardy, 169 U.S. 366 (1988). 266 Bunting v. Oregon, 243 U.S. 426 (1917). 267 Atkin v. Kansas, 191 U.S. 207 (1903). 268Keokee Coke Co. v. Taylor, 234 U.S. 224 (1914). See also Knoxville Iron Co.

v. Harbison, 183 U.S. 13 (1901). 269McLean v. Arkansas, 211 U.S. 539 (1909). 270Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922). 271 Chicago, R.I. & P. Ry. v. Perry, 259 U.S. 548 (1922). 272Mountain Timber Co. v. Washington, 243 U.S. 219 (1917). 273 New York Central R.R. v. White, 243 U.S. 188 (1917); Middletown v. Texas

Power & Light Co., 249 U.S. 152 (1919); Ward & Gow v. Krinsky, 259 U.S. 503

(1922). 274Lincoln 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).

struck down a law which exempted by name the American Express

Company from the terms pertaining to the licensing, bonding, regulation, and inspection of ‘‘currency exchanges’’ engaged in the sale

of money orders. 264

Other Business and Employment Relations

Labor Relations.—Objections to labor legislation on the

ground that the limitation of particular regulations to specified industries was obnoxious to the equal protection clause have been

consistently overruled. Statutes limiting hours of labor for employees in mines, smelters, 265 mills, factories, 266 or on public works 267

have been sustained. And a statute forbidding persons engaged in

mining and manufacturing to issue orders for payment of labor unless redeemable at face value in cash was similarly held

unobjectionable. 268 The exemption of mines employing less than

ten persons from a law pertaining to measurement of coal to determine a miner’s wages is not unreasonable. 269 All corporations 270

or public service corporations 271 may be required to issue to employees who leave their service letters stating the nature of the

service and the cause of leaving even though other employers are

not so required.

Industries may be classified in a workmen’s compensation act

according to the respective hazards of each, 272 and the exemption

of farm laborers and domestic servants does not render such an act

invalid. 273 A statute providing that no person shall be denied opportunity for employment because he is not a member of a labor

union does not offend the equal protection clause. 274 At a time
AMENDMENT 14—RIGHTS GUARANTEED 1835

275 E.g., Muller v. Oregon, 208 U.S. 412 (1908). 276Goesaert v. Cleary, 335 U.S. 464 (1948). 277Title VII, 78 Stat. 253, 42 U.S.C. § 2000e. On sex discrimination generally,

see infra, pp. 1875–86.

278Mallinckrodt Works v. St. Louis, 238 U.S. 41 (1915). 279 International Harvester Co. v. Missouri, 234 U.S. 199 (1914). 280Tigner v. Texas, 310 U.S. 141 (1940) (overruling Connolly v. Union Sewer

Pipe Co., 184 U.S. 540 (1902)). 281Standard Oil Co. v. Tennessee, 217 U.S. 413 (1910). 282 Carroll v. Greenwich Ins. Co., 199 U.S. 401 (1905). 283Pacific 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). 284Safeway Stores v. Oklahoma Grocers, 360 U.S. 334, 339–41 (1959).

when protective labor legislation generally was falling under ‘‘liberty of contract’’ applications of the due process clause, the Court

generally approved protective legislation directed solely to women

workers 275 and this solicitude continued into present times in the

approval of laws which were more questionable, 276 but passage of

the sex discrimination provision of the 1964 Civil Rights Act has

generally called into question all such protective legislation addressed solely to women. 277

Monopolies and Unfair Trade Practices.—On the principle

that the law may hit the evil where it is most felt, state antitrust

laws applicable to corporations but not to individuals, 278 or to vendors of commodities but not to vendors of labor, 279 have been

upheld. Contrary to its earlier view, the Court now holds that an

antitrust act which exempts agricultural products in the hands of

the producer is valid. 280 Diversity with respect to penalties also

has been sustained. Corporations violating the law may be proceeded against by bill in equity, while individuals are indicted and

tried. 281 A provision, superimposed upon the general antitrust law,

for revocation of the licenses of fire insurance companies that enter

into illegal combinations, does not violate the equal protection

clause. 282 A grant of monopoly privileges, if otherwise an appropriate exercise of the police power, is immune to attack under that

clause. 283 Likewise, enforcement of an unfair sales act, whereby

merchants are privileged to give trading stamps, worth two and

one-half percent of the price, with goods sold at or near statutory

cost, while a competing merchant, not issuing stamps, is precluded

from making an equivalent price reduction, effects no discrimination. There is a reasonable basis for concluding that destructive,

deceptive competition results from selective loss-leader selling

whereas such abuses do not attend issuance of trading stamps

‘‘across the board,’’ as a discount for payment in cash. 284

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
1836 AMENDMENT 14—RIGHTS GUARANTEED

285 Yick Wo v. Hopkins, 118 U.S. 356 (1886). 286Fischer v. St. Louis, 194 U.S. 361 (1904). 287Gorieb v. Fox, 274 U.S. 603 (1927). 288Wilson v. Eureka City, 173 U.S. 32 (1899). 289Gundling v. Chicago, 177 U.S. 183 (1900). 290Kotch v. Board of River Port Pilot Comm’rs, 330 U.S. 552 (1947). 291Dandridge 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). 292Dandridge v. Williams, 397 U.S. 471, 483–87 (1970).

buildings, without consideration of the circumstances of individual

cases, constitutes a denial of equal protection of the law when consent is withheld from certain persons solely on the basis of nationality. 285 But a city council may reserve to itself the power to make

exceptions from a ban on the operation of a dairy within the

city, 286 or from building line restrictions. 287 Written permission of

the mayor or president of the city council may be required before

any person shall move a building on a street. 288 The mayor may

be empowered to determine whether an applicant has a good character and reputation and is a suitable person to receive a license

for the sale of cigarettes. 289 In a later case, 290 the Court held that

the unfettered discretion of river pilots to select their apprentices,

which was almost invariably exercised in favor of their relatives

and friends, was not a denial of equal protection to persons not selected despite the fact that such apprenticeship was requisite for

appointment as a pilot.

Social Welfare.—The traditional ‘‘reasonable basis’’ standard

of equal protection adjudication developed in the main in cases involving state regulation of business and industry. ‘‘The administration of public welfare assistance, by contrast, involves the most

basic economic needs of impoverished human beings. We recognize

the dramatically real factual difference between the cited cases and

this one, but we can find no basis for applying a different constitutional standard.’’ 291 Thus, a formula for dispensing aid to dependent children which imposed an upper limit on the amount one family could receive, regardless of the number of children in the family,

so that the more children in a family the less money per child was

received, was found to be rationally related to the legitimate state

interest in encouraging employment and in maintaining an equitable balance between welfare families and the families of the

working poor. 292 Similarly, a state welfare assistance formula

which, after calculation of individual need, provided less of the determined amount to families with dependent children than to those
AMENDMENT 14—RIGHTS GUARANTEED 1837

293 Jefferson v. Hackney, 406 U.S. 535 (1972). See also Richardson v. Belcher,

404 U.S. 78 (1971) (sustaining Social Security provision reducing disability benefits

by amount received from worker’s compensation but not that received from private

insurance). 294 E.g., Mathews v. De Castro, 429 U.S. 181 (1976) (provision giving benefits

to married woman under 62 with dependent children in her care whose husband retires or becomes disabled but denying benefits to divorced woman under 62 with dependents represents rational judgment with respect to likely dependency of married

but not divorced women); Califano v. Boles, 443 U.S. 282 (1979) (limitation of benefits to widows and divorced wives of wage earners does not deny equal protection

to mother of illegitimate child of wage earner who was never married to wage earner). 295Department of Agriculture v. Moreno, 413 U.S. 528 (1973) (also questioning

rationality). 296Lindsey 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. 297 Eisenstadt v. Baird, 405 U.S. 438 (1972).

persons in the aged and infirm categories did not violate equal protection because a State could reasonably believe that the aged and

infirm are the least able to bear the hardships of an inadequate

standard of living, and that the apportionment of limited funds was

therefore rational. 293 While reiterating that this standard of review is ‘‘not a toothless one,’’ the Court has nonetheless sustained

a variety of distinctions on the basis that Congress could rationally

have believed them justified, 294 acting to invalidate a provision

only once and then on the premise that Congress was actuated by

an improper purpose. 295

Similarly, the Court has rejected the contention that access to

housing, despite its great importance, is of any fundamental interest which would place a bar upon the legislature’s giving landlords

a much more favorable and summary process of judicially-controlled eviction actions than was available in other kinds of litigation. 296

However, a statute which prohibited the dispensing of contraceptive devices to single persons for birth control but not for disease prevention purposes and which contained no limitation on dispensation to married persons was held to violate the equal protection clause on several grounds. On the basis of the right infringed

by the limitation, the Court saw no rational basis for the State to

distinguish between married and unmarried persons. Similarly, the

exemption from the prohibition for purposes of disease prevention

nullified the argument that the rational basis for the law was the

deterrence of fornication, the rationality of which the Court doubted in any case. 297 Also denying equal protection was a law afford-
1838 AMENDMENT 14—RIGHTS GUARANTEED

298Stanley v. Illinois, 405 U.S. 645, 658 (1972). 299Pace v. Alabama, 106 U.S. 583 (1883). See Salzburg v. Maryland, 346 U.S.

545 (1954), sustaining law rendering illegally seized evidence inadmissible in prosecutions in state courts for misdemeanors but permitting use of such evidence in

one county in prosecutions for certain gambling misdemeanors. Distinctions based

on county areas were deemed reasonable. In North v. Russell, 427 U.S. 328 (1976),

the Court sustained the provision of law-trained judges for some police courts and

lay judges for others, depending upon the state constitutional classification of cities

according to population, since as long as all people within each classified area are

treated equally, the different classifications within the court system are justifiable. 300 Collins v. Johnston, 237 U.S. 502, 510 (1915); Pennsylvania v. Ashe, 302

U.S. 51 (1937). 301McDonald v. Massachusetts, 180 U.S. 311 (1901); Moore v. Missouri, 159

U.S. 673 (1895); Graham v. West Virginia, 224 U.S. 616 (1912). 302 Carlesi v. New York, 233 U.S. 51 (1914). 303 Ughbanks v. Armstrong, 208 U.S. 481 (1908). 304Pennsylvania v. Ashe, 302 U.S. 51 (1937). 305McGinnis v. Royster, 410 U.S. 263 (1973). Cf. Hurtado v. United States, 410

U.S. 578 (1973).

ing married parents, divorced parents, and unmarried mothers an

opportunity to be heard with regard to the issue of their fitness to

continue or to take custody of their children, an opportunity the

Court decided was mandated by due process, but presuming the

unfitness of the unmarried father and giving him no hearing. 298

Punishment of Crime.—Equality of protection under the law

implies that in the administration of criminal justice no person

shall be subject to any greater or different punishment than another in similar circumstances. 299 Comparative gravity of criminal

offenses is, however, largely a matter of state discretion, and the

fact that some offenses are punished with less severity than others

does not deny equal protection. 300 Heavier penalties may be imposed upon habitual criminals for like offenses, 301 even after a pardon for an earlier offense, 302 and such persons may be made ineligible for parole. 303 A state law doubling the sentence on prisoners

attempting to escape does not deny equal protection by subjecting

prisoners who attempt to escape together to different sentences depending on their original sentences. 304

A statute denying state prisoners good time credit for

presentence incarceration but permitting those prisoners who obtain bail or other release immediately to receive good time credit

for the entire period which they ultimately spend in custody, good

time counting toward the date of eligibility for parole, does not

deny the prisoners incarcerated in local jails equal protection inasmuch as the distinction is rationally justified by the fact that good

time credit is designed to encourage prisoners to engage in rehabilitation courses and activities which exist only in state prisons

and not in local jails. 305
AMENDMENT 14—RIGHTS GUARANTEED 1839

306Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942). 307 Rinaldi v. Yeager, 384 U.S. 305 (1966). But see Fuller v. Oregon, 417 U.S.

40 (1974) (imposition of reimbursement obligation for state-provided defense assistance upon convicted defendants but not upon those acquitted or whose convictions

are reversed is objectively rational). 308 James v. Strange, 407 U.S. 128 (1972). 309Schilb v. Kuebel, 404 U.S. 357 (1971). 310 Infra, pp. 1916–25.

The equal protection clause does, however, render invalid a

statute requiring the sterilization of persons convicted of various

offenses when the statute draws a line between like offenses, such

as between larceny by fraud and embezzlement. 306 A statute which

provided that convicted defendants sentenced to imprisonment

must reimburse the State for the furnishing of free transcripts of

their trial by having amounts deducted from prison pay denied

such persons equal protection when it did not require reimbursement of those fined, given suspended sentences, or placed on probation. 307 Similarly, a statute enabling the State to recover the costs

of such transcripts and other legal defense fees by a civil action

was defective under the equal protection clause because indigent

defendants against whom judgment was entered under the statute

did not have the benefit of exemptions and benefits afforded other

civil judgment debtors. 308 But a bail reform statute which provided

for liberalized forms of release and which imposed the costs of operating the system upon one category of released defendants, generally those most indigent, was not invalid because the classification was rational and because the measure was in any event a substantial improvement upon the old bail system. 309 The Court in

the last several years has applied the clause strictly to prohibit numerous de jure and de facto distinctions based on wealth or

indigency. 310

EQUAL PROTECTION AND RACE

Overview

The Fourteenth Amendment ‘‘is one of a series of constitutional

provisions having a common purpose; namely, securing to a race recently emancipated, a race that through many generations had

been held in slavery, all the civil rights that the superior race

enjoy. The true spirit and meaning of the amendments . . . cannot

be understood without keeping in view the history of the times

when they were adopted, and the general objects they plainly

sought to accomplish. At the time when they were incorporated

into the Constitution, it required little knowledge of human nature

to anticipate that those who had long been regarded as an inferior

and subject race would, when suddenly raised to the rank of citi-
1840 AMENDMENT 14—RIGHTS GUARANTEED

1Strauder v. West Virginia, 100 U.S. 303, 306–07 (1880).

2 Id. (law providing for jury service specified white males). Moreover it will not

do to argue that a law that segregates the races or prohibits contacts between them

discriminates equally against both races. Buchanan v. Warley, 245 U.S. 60 (1917)

(ordinance prohibiting blacks from occupying houses in blocks where whites were

predominant and whites from occupying houses in blocks where blacks were predominant). Compare Pace v. Alabama, 106 U.S. 583 (1883) (sustaining conviction

under statute that imposed a greater penalty for adultery or fornication between a

white person and an African American than was imposed for similar conduct by

members of the same race, using ‘‘equal application’’ theory), with McLaughlin v.

Florida, 379 U.S. 184, 188 (1964), and Loving v. Virginia, 388 U.S. 1, 10 (1967) (rejecting theory). 3 Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (discrimination against Chinese). 4Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 67–72 (1873); Strauder v. West

Virginia, 100 U.S. 303, 307–08 (1880); Virginia v. Rives, 100 U.S. 313, 318 (1880);

Ex parte Virginia, 100 U.S. 339, 344–45 (1880). 5 163 U.S. 537 (1896).

6 Roberts v. City of Boston, 59 Mass. 198, 206 (1849).

zenship, be looked upon with jealousy and positive dislike, and that

State laws might be enacted or enforced to perpetuate the distinctions that had before existed. . . . [The Fourteenth Amendment]

was designed to assure to the colored race the enjoyment of all the

civil rights that under the law are enjoyed by white persons, and

to give to that race the protection of the general government in

that enjoyment, whenever it should be denied by the States. It not

only gave citizenship and the privileges of citizenship to persons of

color, but it denied to any State the power to withhold from them

the equal protection of the laws, and authorized Congress to enforce its provision by appropriate legislation.’’ 1 Thus, a state law

which on its face worked a discrimination against African Americans was void. 2 In addition, ‘‘[t]hough the law itself be fair on its

face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand,

so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights,

the denial of equal justice is still within the prohibition of the Constitution.’’ 3

Education

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

Cases decided soon after ratification of the Fourteenth Amendment

may be read as precluding any state-imposed distinction based on

race, 4 but the Court in Plessy v. Ferguson 5 adopted a principle

first propounded in litigation attacking racial segregation in the

schools of Boston, Massachusetts. 6 Plessy concerned not schools but

a state law requiring the furnishing of ‘‘equal but separate’’ facilities for rail transportation and requiring the separation of ‘‘white
AMENDMENT 14—RIGHTS GUARANTEED 1841

7Plessy v. Ferguson, 163 U.S. 537, 543–44 (1896). ‘‘We consider the underlying

fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this

be so, it is not by reason of anything found in the act, but solely because the colored

race chooses to put that construction upon it.’’ Id. at 552, 559. 8 Id. at 544–45. The act of Congress in providing for separate schools in the District of Columbia was specifically noted. Justice Harlan’s well-known dissent contended that the purpose and effect of the law in question was discriminatory and

stamped African Americans with a badge of inferiority. ‘‘[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling

class of citizens. There is no caste here. Our Constitution is color-blind, and neither

knows nor tolerates classes among citizens.’’ Id. at 552, 559. 9Gong Lum v. Rice, 275 U.S. 78 (1927).

10 Cummings v. Board of Education, 175 U.S. 528 (1899). 11 Berea College v. Kentucky, 211 U.S. 45 (1908).

and colored’’ passengers. ‘‘The object of the [Fourteenth]

[A]mendment was undoubtedly to enforce the absolute equality of

the two races before the law, but in the nature of things it could

not have been intended to abolish distinctions based upon color, or

to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.

Laws permitting, and even requiring their separation in places

where they are liable to be brought into contact do not necessarily

imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of

the state legislatures in exercise of their police power.’’ 7 The Court

observed that a common instance of this type of law was the separation by race of children in school, which had been upheld, it was

noted, ‘‘even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.’’ 8

Subsequent cases following Plessy that actually concerned

school segregation did not expressly question the doctrine and the

Court’s decisions assumed its validity. It held, for example, that a

Chinese student was not denied equal protection by being classified

with African Americans and sent to school with them rather than

with whites, 9 and it upheld the refusal of an injunction to require

a school board to close a white high school until it opened a high

school for African Americans. 10 And no violation of the equal protection clause was found when a state law prohibited a private college from teaching whites and African Americans together. 11

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
1842 AMENDMENT 14—RIGHTS GUARANTEED

12Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). See also Sipuel v.

Board of Regents, 332 U.S. 631 (1948). 13Sweatt v. Painter, 339 U.S. 629 (1950). 14McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950). 15 347 U.S. 483 (1954). Segregation in the schools of the District of Columbia

was held to violate the due process clause of the Fifth Amendment in Bolling v.

Sharpe, 347 U.S. 497 (1954). 16 Brown v. Board of Education, 347 U.S. 483, 489–90, 492–95 (1954).

within the State. 12 When Texas established a law school for African Americans after the plaintiff had applied and been denied admission to the school maintained for whites, the Court held the action to be inadequate, finding that the nature of law schools and

the associations possible in the white school necessarily meant that

the separate school was unequal. 13 Equally objectionable was the

fact that when Oklahoma admitted an African American law student to its only law school it required him to remain physically separate from the other students. 14

Brown v. Board of Education.—‘‘Separate but equal’’ was

formally abandoned in Brown v. Board of Education, 15 involving

challenges to segregation per se in the schools of four States in

which the lower courts had found that the schools provided were

equalized or were in the process of being equalized. Though the

Court had asked for argument on the intent of the framers, extensive research had proved inconclusive, and the Court asserted that

it could not ‘‘turn the clock back to 1867. . . or even to 1896,’’ but

must rather consider the issue in the context of the vital importance of education in 1954. The Court reasoned that denial of opportunity for an adequate education would often be a denial of the

opportunity to succeed in life, that separation of the races in the

schools solely on the basis of race must necessarily generate feelings of inferiority in the disfavored race adversely affecting education as well as other matters, and therefore that the equal protection clause was violated by such separation. ‘‘We conclude that

in the field of public education the doctrine of ‘separate but equal’

has no place. Separate educational facilities are inherently unequal.’’ 16

After hearing argument on what remedial order should issue,

the Court remanded the cases to the lower courts to adjust the effectuation of its mandate to the particularities of each school district. ‘‘At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory

basis.’’ The lower courts were directed to ‘‘require that the defendants make a prompt and reasonable start toward full compliance,’’

although ‘‘[o]nce such a start has been made,’’ some additional time

would be needed because of problems arising in the course of com-
AMENDMENT 14—RIGHTS GUARANTEED 1843

17 Brown v. Board of Education, 349 U.S. 294, 300–01 (1955). 18 Cooper v. Aaron, 358 U.S. 1 (1958). 19 E.g., Covington v. Edwards, 264 F.2d 780 (4th Cir.), cert. denied, 361 U.S. 840

(1959); Holt v. Raleigh City Bd. of Educ., 265 F.2d 95 (4th Cir.), cert. denied, 361

U.S. 818 (1959); Dove v. Parham, 271 F.2d 132 (8th Cir. 1959). 20 E.g., McCoy v. Greensboro City Bd. of Educ., 283 F.2d 667 (4th Cir. 1960);

Green v. School Board of Roanoke, 304 F.2d 118 (4th Cir. 1962); Gibson v. Board

of Pub. Instruction of Dade County, 272 F.2d 763 (5th Cir. 1959); Northcross v.

Board of Educ. of Memphis, 302 F.2d 818 (6th Cir. 1962), cert. denied, 370 U.S. 944

(1962). 21McNeese v. Board of Education, 373 U.S. 668 (1963). 22Griffin 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). 23Goss v. Board of Educ. of City of Knoxville, 373 U.S. 683 (1963). Such plans

permitted as of right a student assigned to a school in which students of his race

were a minority to transfer to a school where the student majority was of his race. 24 Northcross v. Board of Educ. of Memphis, 333 F.2d 661 (6th Cir. 1964). 25The 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 desegpliance and the lower courts were to allow it if on inquiry delay

were found to be ‘‘in the public interest and [to be] consistent with

good faith compliance . . . to effectuate a transition to a racially

nondiscriminatory school system.’’ But in any event the lower

courts were to require compliance ‘‘with all deliberate speed.’’ 17

Brown’s Aftermath.—For the next several years, the Court

declined to interfere with the administration of its mandate, ruling

only in those years on the efforts of Arkansas to block desegregation of schools in Little Rock. 18 In the main, these years were

taken up with enactment and administration of ‘‘pupil placement

laws’’ by which officials assigned each student individually to a

school on the basis of formally nondiscriminatory criteria, and

which required the exhaustion of state administrative remedies before each pupil seeking reassignment could bring individual litigation. 19 The lower courts eventually began voiding these laws for

discriminatory application, permitting class actions, 20 and the Supreme Court voided the exhaustion of state remedies requirement. 21 In the early 1960’s, various state practices—school closings, 22 minority transfer plans, 23 zoning, 24 and the like—were

ruled impermissible, and the Court indicated that the time was

running out for full implementation of the Brown mandate. 25
1844 AMENDMENT 14—RIGHTS GUARANTEED

regating 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).

26 E.g., Bradley v. School Bd. of City of Richmond, 345 F.2d 310 (4th Cir.), rev’d

on other grounds, 382 U.S. 103 (1965); Bowman v. School Bd. of Charles City County, 382 F.2d 326 (4th Cir. 1967).

27Pub. 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).

28 391 U.S. 430 (1968); Raney v. Board of Educ. of Gould School Dist., 391 U.S.

443 (1968). These cases had been preceded by a circuit-wide promulgation of similar

standards in United States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir.

1966), modified & aff’d. en banc, 380 F.2d 385 (5th Cir.), cert. denied, 389 U.S. 840

(1967).

29Green, 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 statecompelled 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.

About this time, ‘‘freedom of choice’’ plans were promulgated

under which each child in the school district could choose each year

which school he wished to attend, and, subject to space limitations,

he could attend that school. These were first approved by the lower

courts as acceptable means to implement desegregation, subject to

the reservation that they be fairly administered. 26 Enactment of

Title VI of the Civil Rights Act of 1964 and HEW enforcement in

a manner as to require effective implementation of affirmative actions to desegregate 27 led to a change of attitude in the lower

courts and the Supreme Court. In Green v. School Board of New

Kent County, 28 the Court posited the principle that the only desegregation plan permissible is one which actually results in the abolition of the dual school, and charged school officials with an affirmative obligation to achieve it. School boards must present to the district courts ‘‘a plan that promises realistically to work and promises

realistically to work now,’’ in such a manner as ‘‘to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just

schools.’’ 29 Furthermore, as the Court and lower courts had by

then made clear, school desegregation encompassed not only the

abolition of dual attendance systems for students, but also the
AMENDMENT 14—RIGHTS GUARANTEED 1845

30 Bradley v. School Bd. of City of Richmond, 382 U.S. 103 (1965) (faculty desegregation is integral part of any pupil desegregation plan); United States v. Montgomery County Bd. of Educ., 395 U.S. 225 (1969) (upholding district court order requiring assignment of faculty and staff on a ratio based on racial population of district).31 United States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966),

mod. & aff’d en banc, 380 F.2d 385 (5th Cir.), cert. denied, 389 U.S. 840 (1967). 32 Hall v. St. Helena Parish School Bd., 417 F.2d 801 (5th Cir.), cert. denied,

396 U.S. 904 (1969); Henry v. Clarksdale Mun. Separate School Dist., 409 F.2d 682

(5th Cir.), cert. denied, 396 U.S. 940 (1969); Brewer v. School Bd. of City of Norfolk,

397 F.2d 37 (4th Cir. 1968); Clark v. Board of Educ. of City of Little Rock, 426 F.2d

1035 (8th Cir. 1970). 33 Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20 (1969). The Court

summarily reiterated its point several times in the Term. Carter v. West Fana Parish School Board, 396 U.S. 290 (1970); Northcross v. Board of Educ. of Memphis,

397 U.S. 232 (1970); Dowell v. Bd. of Educ. of Oklahoma City, 396 U.S. 269 (1969). 34 402 U.S. 1 (1971); see also Davis v. Board of School Comm’rs of Mobile County, 402 U.S. 33 (1971). 35McDaniel v. Barresi, 402 U.S. 39 (1971); North Carolina State Bd. of Educ.

v. Swann, 402 U.S. 43 (1971).

merging into one system of faculty, 30 staff, and services, so that no

school could be marked as either a ‘‘black’’ or a ‘‘white’’ school. 31

Implementation of School Desegregation.—In the aftermath of Green, the various Courts of Appeals held inadequate an

increasing number of school board plans based on ‘‘freedom of

choice,’’ on zoning which followed traditional residential patterns,

or on some combination of the two. 32 The Supreme Court’s next opportunity to speak on the subject came when HEW sought to withdraw desegregation plans it had submitted at court request and

asked for a postponement of a court-imposed deadline, which was

reluctantly granted by the Fifth Circuit. The Court unanimously

reversed and announced that ‘‘continued operation of segregated

schools under a standard of allowing ‘all deliberate speed’ for desegregation is no longer constitutionally permissible. Under explicit

holdings of this Court the obligation of every school district is to

terminate dual school systems at once and to operate now and

hereafter only unitary schools.’’ 33

In the October 1970 Term the Court in Swann v. CharlotteMecklenburg Board of Education 34 undertook to elaborate the requirements for achieving a unitary school system and delineating

the methods which could or must be used to achieve it, and at the

same time struck down state inhibitions on the process. 35 The

opinion in Swann emphasized that the goal since Brown was the

dismantling of an officially-imposed dual school system. ‘‘Independent of student assignment, where it is possible to identify a ‘white

school’ or a ‘Negro school’ simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of
1846 AMENDMENT 14—RIGHTS GUARANTEED

36 402 U.S. at 18. 37 Id. at 25–27. 38 Id. at 22–25. 39 Id. at 27–29. 40 Id. at 29–31. 41 Id. at 31–32. In Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976),

the Court held that after a school board has complied with a judicially-imposed desegregation plan in student assignments and thus undone the existing segregation,

it is beyond the district court’s power to order it subsequently to implement a new

plan to undo the segregative effects of shifting residential patterns. The Court

agreed with the dissenters, Justices Marshall and Brennan, id., 436, 441, that the

school board had not complied in other respects, such as in staff hiring and proviolation of substantive constitutional rights under the Equal Protection Clause is shown.’’ 36 While ‘‘the existence of some small

number of one-race, or virtually one-race, schools within a district

is not in and of itself the mark of a system that still practices segregation by law,’’ any such situation must be closely scrutinized by

the lower courts, and school officials have a heavy burden to prove

that the situation is not the result of state-fostered segregation.

Any desegregation plan which contemplates such a situation must

before a court accepts it be shown not to be affected by present or

past discriminatory action on the part of state and local officials. 37

When a federal court has to develop a remedial desegregation plan,

it must start with an appreciation of the mathematics of the racial

composition of the school district population; its plan may rely to

some extent on mathematical ratios but it should exercise care that

this use is only a starting point. 38

Because current attendance patterns may be attributable to

past discriminatory actions in site selection and location of school

buildings, the Court in Swann determined that it is permissible,

and may be required, to resort to altering of attendance boundaries

and grouping or pairing schools in noncontiguous fashion in order

to promote desegregation and undo past official action; in this remedial process, conscious assignment of students and drawing of

boundaries on the basis of race is permissible. 39 Transportation of

students—busing—is a permissible tool of educational and desegregation policy, inasmuch as a neighborhood attendance policy may

be inadequate due to past discrimination. The soundness of any

busing plan must be weighed on the basis of many factors, including the age of the students; when the time or distance of travel is

so great as to risk the health of children or significantly impinge

on the educational process, the weight shifts. 40 Finally, the Court

indicated, once a unitary system has been established, no affirmative obligation rests on school boards to adjust attendance year by

year to reflect changes in composition of neighborhoods so long as

the change is solely attributable to private action. 41
AMENDMENT 14—RIGHTS GUARANTEED 1847

motion, but it thought that was irrelevant to the issue of neutral student assignments. 42The 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. 43 418 U.S. 717 (1974). 44 Id. at 745. 45 Id. at 741–42.

Northern Schools: Inter- and Intradistrict Desegregation.—The appearance in the Court of school cases from large metropolitan areas in which the separation of the races was not mandated by law but allegedly by official connivance through zoning of

school boundaries, pupil and teacher assignment policies, and site

selections, required the development of standards for determining

when segregation was de jure and what remedies should be imposed when such official separation was found. 42

Accepting the findings of lower courts that the actions of local

school officials and the state school board were responsible in part

for the racial segregation existing within the school system of the

City of Detroit, the Court in Milliken v. Bradley 43 set aside a desegregation order which required the formulation of a plan for a

metropolitan area including the City and 53 adjacent suburban

school districts. The basic holding of the Court was that such a

remedy could be implemented only to cure an inter-district constitutional violation, a finding that the actions of state officials and

of the suburban school districts were responsible, at least in part,

for the interdistrict segregation, through either discriminatory actions within those jurisdictions or constitutional violations within

one district that had produced a significant segregative effect in another district. 44 The permissible scope of an inter-district order,

however, would have to be considered in light of the Court’s language regarding the value placed upon local educational units. ‘‘No

single tradition in public education is more deeply rooted than local

control over the operation of schools; local autonomy has long been

thought essential both to the maintenance of community concern

and support for public schools and to quality of the educational

process.’’ 45 Too, the complexity of formulating and overseeing the

implementation of a plan that would effect a de facto consolidation

of multiple school districts, the Court indicated, would impose a

task which few, if any, judges are qualified to perform and one
1848 AMENDMENT 14—RIGHTS GUARANTEED

46 Id. at 742–43. This theme has been sounded in a number of cases in suits

seeking remedial actions in particularly intractable areas. Mayor of Philadelphia v.

Educational Equality League, 415 U.S. 605, 615 (1974); O’Shea v. Littleton, 414

U.S. 488, 500–02 (1974). In Hills v. Gautreaux, 425 U.S. 284, 293 (1976), the Court

wrote that it had rejected the metropolitan order because of ‘‘fundamental limitations on the remedial powers of the federal courts to restructure the operation of

local and state governmental entities. . . .’’ In other places, the Court stressed the

absence of interdistrict violations, id., 294, and in still others paired the two reasons. Id. at 296. 47Milliken 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. 48 Id. at 744. See Hills v. Gautreaux, 425 U.S. 284, 294 n.11 (1976) (‘‘[T]he

Court’s decision in Milliken was premised on a controlling principle governing the

permissible scope of federal judicial power.’’); Austin Indep. School Dist. v. United

States, 429 U.S. 990, 991 (1976) (Justice Powell concurring) (‘‘a core principle of desegregation cases’’ is that set out in Milliken). 49When 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). 50 413 U.S. 189 (1973).

which would deprive the people of control of their schools through

elected representatives. 46 ‘‘The constitutional right of the Negro respondents residing in Detroit is to attend a unitary school system

in that district.’’ 47

‘‘The controlling principle consistently expounded in our holdings,’’ said the Court in the Detroit case, ‘‘is that the scope of the

remedy is determined by the nature and extent of the constitutional violation.’’ 48 While this axiom caused little problem when

the violation consisted of statutorily mandated separation, 49 it has

required a considerable expenditure of judicial effort and parsing of

opinions to work out in the context of systems in which the official

practice was nondiscriminatory but official action operated to the

contrary. At first, the difficulty was obscured through the creation

of presumptions that eased the burden of proof on plaintiffs, but

later the Court had appeared to stiffen the requirements on plaintiffs.

Determination of the existence of a constitutional violation and

the formulation of remedies, within one district, first was presented

to the Court in a northern setting in Keyes v. Denver School District. 50 The lower courts had found the school segregation existing

within one part of the City to be attributable to official action, but

as to the central city they found the separation not to be the result
AMENDMENT 14—RIGHTS GUARANTEED 1849

51 Id. at 207–211. Justice Rehnquist argued that imposition of a district-wide

segregation order should not proceed from a finding of segregative intent and effect

in only one portion, that in effect the Court was imposing an affirmative obligation

to integrate without first finding a constitutional violation. Id. at 254 (dissenting).

Justice Powell cautioned district courts against imposing disruptive desegregation

plans, especially substantial busing in large metropolitan areas, and stressed the responsibility to proceed with reason, flexibility, and balance. Id. at 217, 236 (concurring and dissenting). See his opinion in Austin Indep. School Dist. v. United States,

429 U.S. 990, 991 (1976) (concurring). 52Of 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). 53Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976). 54 Id. at 436.

of official action and refused to impose a remedy for those schools.

The Supreme Court found this latter holding to be error, holding

that when it is proved that a significant portion of a system is officially segregated, the presumption arises that segregation in the

remainder or other portions of the system is also similarly contrived. The burden the shifts to the school board or other officials

to rebut the presumption by proving, for example, that geographical structure or natural boundaries have caused the dividing of a

district into separate identifiable and unrelated units. Thus, a finding that one significant portion of a school system is officially segregated may well be the predicate for finding that the entire system is a dual one, necessitating the imposition upon the school authorities of the affirmative obligation to create a unitary system

throughout. 51

Keyes then was consistent with earlier cases requiring a showing of official complicity in segregation and limiting the remedy to

the violation found; by creating presumptions Keyes simply afforded

plaintiffs a way to surmount the barriers imposed by strict application of the requirements. Following the enunciation in the Detroit

inter-district case, however, of the ‘‘controlling principle’’ of school

desegregation cases, the Court appeared to move away from the

Keyes approach. 52 First, the Court held that federal equity power

was lacking to impose orders to correct demographic shifts ‘‘not attributed to any segregative actions on the part of the defendants.’’ 53 A district court that had ordered implementation of a student assignment plan that resulted in a racially neutral system exceeded its authority, the Court held, by ordering annual readjustments to offset the demographic changes. 54

Second, in the first Dayton case the lower courts had found

three constitutional violations that had resulted in some pupil seg-
1850 AMENDMENT 14—RIGHTS GUARANTEED

55Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977) (quoting Hills v.

Gautreaux, 425 U.S. 284, 294 (1976)). 56Dayton 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. 57 Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979); Dayton Bd. of Educ.

v. Brinkman, 443 U.S. 526 (1979).

regation, and, based on these three, viewed as ‘‘cumulative violations,’’ a district-wide transportation plan had been imposed. Reversing, the Supreme Court reiterated that the remedial powers of

the federal courts are called forth by violations and are limited by

the scope of those violations. ‘‘Once a constitutional violation is

found, a federal court is required to tailor ‘the scope of the remedy’

to fit ‘the nature and extent of the constitutional violation.’ ’’ 55 The

goal is to restore the plaintiffs to the position they would have occupied had they not been subject to unconstitutional action. Lower

courts ‘‘must determine how much incremental segregative effect

these violations had on the racial distribution of the Dayton school

population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there

be a systemwide remedy.’’ 56 The Court then sent the case back to

the district court for the taking of evidence, the finding of the nature of the violations, and the development of an appropriate remedy.

Surprisingly, however, Keyes was reaffirmed and broadly applied in subsequent appeals of the Dayton case after remand and

in an appeal from Columbus, Ohio. 57 Following the Supreme Court

standards, the Dayton district court held that the plaintiffs had

failed to prove official segregative intent, but was reversed by the

appeals court. The Columbus district court had found and had been

affirmed in finding racially discriminatory conduct and had ordered

extensive busing. The Supreme Court held that the evidence adduced in both district courts showed that the school boards had

carried out segregating actions affecting a substantial portion of

each school system prior to and contemporaneously with the 1954

decision in Brown v. Board of Education. The Keyes presumption

therefore required the school boards to show that systemwide discrimination had not existed, and they failed to do so. Because each

system was a dual one in 1954, it was subject to an ‘‘affirmative

duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated
AMENDMENT 14—RIGHTS GUARANTEED 1851

58 Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 459 (1979) (quoting Green v.

School Bd. of New Kent County, 391 U.S. 430, 437–38 (1968)). Contrast the Court’s

more recent decision in Bazemore v. Friday, 478 U.S. 385 (1986) (per curiam), holding that adoption of ‘‘a wholly neutral admissions policy’’ for voluntary membership

in state-sponsored 4-H Clubs was sufficient even though single race clubs continued

to exist under that policy. There is no constitutional requirement that states in all

circumstances pursue affirmative remedies to overcome past discrimination, the

Court concluded; the voluntary nature of the clubs, unrestricted by state definition

of attendance zones or other decisions affecting membership, presented a ‘‘wholly

different milieu’’ from public schools. Id. at 408 (concurring opinion of Justice White,

endorsed by the Court’s per curiam opinion). 59 Id. at 461–65. 60 Id. at 465–67. 61Milliken 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. 62 495 U.S. 33 (1990). 63 Id. at 52. Similarly, the Court held in Spallone v. United States, 493 U.S. 265

(1990), that a district court had abused its discretion in imposing contempt sancroot and branch.’’ 58 Following 1954, segregated schools continued

to exist and the school boards had in fact taken actions which had

the effect of increasing segregation. In the context of the on-going

affirmative duty to desegregate, the foreseeable impact of the actions of the boards could be utilized to infer segregative intent,

thus satisfying the Davis-Arlington Heights standards. 59 The Court

further affirmed the district-wide remedies, holding that its earlier

Dayton ruling had been premised upon the evidence of only a few

isolated discriminatory practices; here, because systemwide impact

had been found, systemwide remedies were appropriate. 60

Reaffirmation of the breadth of federal judicial remedial powers came when, in a second appeal of the Detroit case, the Court

unanimously upheld the order of a district court mandating compensatory or remedial educational programs for school children

who had been subjected to past acts of de jure segregation. So long

as the remedy is related to the condition found to violate the Constitution, so long as it is remedial, and so long as it takes into account the interests of state and local authorities in managing their

own affairs, federal courts have broad and flexible powers to remedy past wrongs. 61

The broad scope of federal courts’ remedial powers was more

recently reaffirmed in Missouri v. Jenkins. 62 There the Court ruled

that a federal district court has the power to order local authorities

to impose a tax increase in order to pay to remedy a constitutional

violation, and if necessary may enjoin operation of state laws prohibiting such tax increases. However, the Court also held, the district court had abused its discretion by itself imposing an increase

in property taxes without first affording local officials ‘‘the opportunity to devise their own solutions.’’ 63
1852 AMENDMENT 14—RIGHTS GUARANTEED

tions 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.

64Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 30–31

(1971).

65Milliken v. Bradley, 418 U.S. 717, 744 (1974).

66 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 LaborHEW 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).

67See, 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).

Efforts to Curb Busing and Other Desegregation Remedies.—Especially during the 1970s, courts and Congress grappled

with the appropriateness of various remedies for de jure racial separation in the public schools, both North and South. Busing of

school children created the greatest amount of controversy. Swann,

of course, sanctioned an order requiring fairly extensive busing, as

did the more recent Dayton and Columbus cases, but the earlier

case cautioned as well that courts must observe limits occasioned

by the nature of the educational process and the well-being of children, 64 and subsequent cases declared the principle that the remedy must be no more extensive than the violation found. 65 Congress has enacted several provisions of law, either permanent statutes or annual appropriations limits, that purport to restrict the

power of federal courts and administrative agencies to order or to

require busing, but these, either because of drafting infelicities or

because of modifications required to obtain passage, have been

largely ineffectual. 66 Stronger proposals, for statutes or for constitutional amendments, were introduced in Congress, but none

passed both Houses. 67

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
AMENDMENT 14—RIGHTS GUARANTEED 1853

68Washington 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). 69Washington v. Seattle School Dist., 458 U.S. 457, 470–82 (1982). Justice

Blackmun wrote the opinion of the Court and was joined by Justices Brennan,

White, Marshall, and Stevens. Dissenting were Justices Powell, Rehnquist, O’Connor, and Chief Justice Burger. Id. at 488. The dissent essentially argued that because the State was ultimately entirely responsible for all educational decisions, its

choice to take back part of the power it had delegated did not raise the issues the

majority thought it did. 70 Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527, 535–40 (1982).

remedies in Washington State and California. 68 Voters in Washington, following a decision by the school board in Seattle to undertake a mandatory busing program, approved an initiative that prohibited school boards from assigning students to any but the nearest or next nearest school that offered the students’ course of study;

there were so many exceptions, however, that the prohibition in effect applied only to busing for racial purposes. In California the

state courts had interpreted the state constitution to require school

systems to eliminate both de jure and de facto segregation. The voters approved an initiative that prohibited state courts from ordering busing unless the segregation was in violation of the Fourteenth Amendment, and a federal judge would be empowered to

order it under United States Supreme Court precedents.

By a narrow division, the Court held unconstitutional the

Washington measure, and with near unanimity of result if not of

reasoning it sustained the California measure. The constitutional

flaw in the Washington measure, the Court held, was that it had

chosen a racial classification—busing for desegregation—and imposed more severe burdens upon those seeking to obtain such a policy than it imposed with respect to any other policy. Local school

boards could make education policy on anything but busing. By singling out busing and making it more difficult than anything else,

the voters had expressly and knowingly enacted a law that had an

intentional impact on a minority. 69 The Court discerned no such

impediment in the California measure, a simple repeal of a remedy

that had been within the government’s discretion to provide. Moreover, the State continued under an obligation to alleviate de facto

segregation by every other feasible means. The initiative had merely foreclosed one particular remedy—court-ordered mandatory busing—as inappropriate. 70

Termination of Court Supervision.—With most school desegregation decrees having been entered decades ago, the issue has

arisen as to what showing of compliance is necessary for a school

district to free itself of continuing court supervision. The Court

grappled with the issue, first in a case involving Oklahoma City
1854 AMENDMENT 14—RIGHTS GUARANTEED

71 498 U.S. 237 (1991). 72 Id. at 249–50. 73 112 S. Ct. 2727 (1992). 74 100 U.S. 303 (1880). Cf. Virginia v. Rives, 100 U.S. 313 (1880). Discrimination

on the basis of race, color, or previous condition of servitude in jury selection has

also been statutorily illegal since enactment of § 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 disparipublic schools, then in a case involving the University of Mississippi college system. A desegregation decree may be lifted, the

Court said in Oklahoma City Board of Education v. Dowell, 71 upon

a showing that the purposes of the litigation have been ‘‘fully

achieved,’’—i.e., that the school district is being operated ‘‘in compliance with the commands of the Equal Protection Clause,’’ that

it has been so operated ‘‘for a reasonable period of time,’’ and that

it is ‘‘unlikely’’ that the school board would return to its former violations. On remand, the trial court was directed to determine

‘‘whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past

[de jure] discrimination had been eliminated to the extent practicable.’’ 72 In United States v. Fordice, 73 the Court determined that

the State of Mississippi had not, by adopting and implementing

race-neutral policies, eliminated all vestiges of its prior de jure, racially segregated, ‘‘dual’’ system of higher education. The State

must also, to the extent practicable and consistent with sound educational practices, eradicate policies and practices that are traceable to the dual system and that continue to have segregative effects. The Court identified several surviving aspects of Mississippi’s

prior dual system which are constitutionally suspect, and which

must be justified or eliminated. The State’s admissions policy, requiring higher test scores for admission to the five historically

white institutions than for admission to the three historically black

institutions, is suspect because it originated as a means of preserving segregation. Also suspect are the widespread duplication of programs, a possible remnant of the dual ‘‘separate-but-equal’’ system;

institutional mission classifications making three historically white

schools the flagship ‘‘comprehensive’’ universities; and the retention

and operation of all eight schools rather than the possible merger

of some.

Juries

It has been established since Strauder v. West Virginia 74 that

exclusion of an identifiable racial or ethnic group from a grand
AMENDMENT 14—RIGHTS GUARANTEED 1855

ties, even though Mexican-surnamed individuals constituted a governing majority of

the county and a majority of the selecting officials were Mexican-American. 75 Bush v. Kentucky, 107 U.S. 110 (1883); Carter v. Texas, 177 U.S. 442 (1900);

Rogers v. Alabama, 192 U.S. 226 (1904); Pierre v. Louisiana, 306 U.S. 354 (1939);

Smith v. Texas, 311 U.S. 128 (1940); Hill v. Texas, 316 U.S. 400 (1942); Cassell v.

Texas, 339 U.S. 282 (1950); Reece v. Georgia, 350 U.S. 85 (1955); Eubanks v. Louisiana, 356 U.S. 584 (1958); Arnold v. North Carolina, 376 U.S. 773 (1964); Alexander

v. Louisiana, 405 U.S. 625 (1972). 76 Hollins v. Oklahoma, 295 U.S. 394 (1935); Avery v. Georgia, 345 U.S. 559

(1953). 77 Neal v. Delaware, 103 U.S. 370 (1881); Martin v. Texas, 200 U.S. 316 (1906);

Norris v. Alabama, 294 U.S. 587 (1935); Hale v. Kentucky, 303 U.S. 613 (1938); Patton v. Mississippi, 332 U.S. 463 (1947); Coleman v. Alabama, 377 U.S. 129 (1964);

Whitus v. Georgia, 385 U.S. 545 (1967); Jones v. Georgia, 389 U.S. 24 (1967); Sims

v. Georgia, 385 U.S. 538 (1967). 78 Even if there is no discrimination in the selection of the petit jury which convicted him, a defendant who shows discrimination in the selection of the grand jury

which indicted him is entitled to a reversal of his conviction. Cassell v. Texas, 339

U.S. 282 (1950); Alexander v. Louisiana, 405 U.S. 625 (1972); Vasquez v. Hillery,

474 U.S. 254 (1986) (habeas corpus remedy). 79Powers v. Ohio, 111 S. Ct. 1364, 1373 (1991). See also Peters v. Kiff, 407 U.S.

493 (1972) (defendant entitled to have his conviction or indictment set aside if he

proves such exclusion). The Court in 1972 was substantially divided with respect to

the reason for rejecting the ‘‘same class’’ rule—that the defendant be of the excluded

class—but in Taylor v. Louisiana, 419 U.S. 522 (1975), involving a male defendant

and exclusion of women, the Court ascribed the result to the fair-cross-section requirement of the Sixth Amendment, which would have application across-the—

board. 80 Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 329 (1970). 81 Id.; Turner v. Fouche, 396 U.S. 346 (1970). 82 Norris v. Alabama, 294 U.S. 587 (1935); Patton v. Mississippi, 332 U.S. 463

(1947); Hill v. Texas, 316 U.S. 400 (1942).

jury 75 which indicts a defendant or a petit jury 76 which tries him,

or from both, 77 denies a defendant of the excluded race equal protection and necessitates reversal of his conviction or dismissal of

his indictment. 78 Even if the defendant’s race differs from that of

the excluded jurors, the Court has recently held, the defendant has

third party standing to assert the rights of jurors excluded on the

basis of race. 79 ‘‘Defendants in criminal proceedings do not have

the only cognizable legal interest in nondiscriminatory jury selection. People excluded from juries because of their race are as much

aggrieved as those indicted and tried by juries chosen under a system of racial exclusion.’’ 80 Thus, persons may bring actions seeking

affirmative relief to outlaw discrimination in jury selection, instead

of depending on defendants to raise the issue. 81

A prima facie case of deliberate and systematic exclusion is

made when it is shown that no African Americans have served on

juries for a period of years 82 or when it is shown that the number

of African Americans who served was grossly disproportionate to

the percentage of African Americans in the population and eligible
1856 AMENDMENT 14—RIGHTS GUARANTEED

83Pierre v. Louisiana, 306 U.S. 354 (1939); Cassell v. Texas, 339 U.S. 282

(1950); Eubanks v. Louisiana, 356 U.S. 584 (1958); Whitus v. Georgia, 385 U.S. 545

(1967); Alexander v. Louisiana, 405 U.S. 625 (1972). For an elaborate discussion of

statistical proof, see Castaneda v. Partida, 430 U.S. 482 (1977). 84 Norris v. Alabama, 294 U.S. 587 (1935); Eubanks v. Georgia, 385 U.S. 545

(1967); Sims v. Georgia, 389 U.S. 404 (1967); Turner v. Fouche, 396 U.S. 346, 360–

361 (1970). 85 Avery v. Georgia, 345 U.S. 559 (1953) (names of whites and African Americans listed on differently colored paper for drawing for jury duty); Whitus v. Georgia, 385 U.S. 545 (1967) (jurors selected from county tax books, in which names of

African Americans were marked with a ‘‘c’’). 86 Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 331–37 (1970), and

cases cited. 87 Id. at 340–41. 88 380 U.S. 202 (1965).

for jury service. 83 Once this prima facie showing has been made,

the burden is upon the jurisdiction to prove that discrimination

was not practiced; it is not adequate that jury selection officials testify under oath that they did not discriminate. 84 Although the

Court in connection with a showing of great disparities in the racial makeup of jurors called has voided certain practices which

made discrimination easy to accomplish, 85 it has not outlawed discretionary selection pursuant to general standards of educational

attainment and character which can be administered fairly. 86

Similarly, it declined to rule that African Americans must be included on all-white jury commissions which administer the jury selection laws in some States. 87

In Swain v. Alabama, 88 African Americans regularly appeared

on jury venires but no African American had actually served on a

jury. It appeared that the absence was attributable to the action

of the prosecutor in peremptorily challenging all potential African

American jurors, but the Court refused to set aside the conviction.

The use of peremptory challenges to exclude the African Americans

in the particular case was permissible, the Court held, regardless

of the prosecutor’s motive, although it was indicated the consistent

use of such challenges to remove African Americans would be unconstitutional. Because the record did not disclose that the prosecution was responsible solely for the fact that no African American

had ever served on a jury and that some exclusions were not the

result of defense peremptory challenges, defendant’s claims were

rejected.

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
AMENDMENT 14—RIGHTS GUARANTEED 1857

89 476 U.S. 79, 96, 98 (1986). The principles were applied in Trevino v. Texas,

112 S. Ct. 1547 (1991), holding that a criminal defendant’s allegation of a state’s

pattern of historical and habitual use of peremptory challenges to exclude members

of racial minorities was sufficient to raise an equal protection claim under Swain

as well as Batson. In Hernandez v. New York, 500 U.S. 352 (1991), a prosecutor

was held to have sustained his burden of providing a race-neutral explanation for

using peremptory challenges to strike bilingual Latino jurors; the prosecutor had explained that, based on the answers and demeanor of the prospective jurors, he had

doubted whether they would accept the interpreter’s official translation of trial testimony by Spanish-speaking witnesses. The Batson ruling applies to cases pending on

direct review or not yet final when Batson was decided, Griffith v. Kentucky, 479

U.S. 314 (1987), but does not apply to a case on federal habeas corpus review, Allen

v. Hardy, 478 U.S. 255 (1986). 90 Edmonson v. Leesville Concrete Co., 111 S. Ct. 2077 (1991). 91Georgia v. McCollum, 112 S. Ct. 2348 (1992). 92 Rose v. Mitchell, 443 U.S. 545, 551 n.4 (1979). 93 Hobby v. United States, 468 U.S. 339 (1984). Note also that in this limited

context where injury to the defendant was largely conjectural, the Court seemingly

revived the same class rule, holding that a white defendant challenging on due process grounds exclusion of blacks as grand jury foremen could not rely on equal protection principles protecting blacks defendants from ‘‘the injuries of stigmatization

and prejudice’’ associated with discrimination. Id. at 347. 94 481 U.S. 279 (1987). The decision was 5–4, with Justice Powell’s opinion of

the Court being joined by Chief Justice Rehnquist and by Justices White, O’Connor,

and Scalia, and with Justices Brennan, Blackmun, Stevens, and Marshall dissenting.

a neutral explanation related to the particular case,’’ but the explanation ‘‘need not rise to the level justifying exercise of a challenge

for cause.’’ 89 The Court has also extended Batson to apply to racially discriminatory use of peremptory challenges by private litigants in civil litigation, 90 and by a defendant in a criminal case, 91

the principal issue in these cases being the presence of state action,

not the invalidity of purposeful racial discrimination.

Discrimination in the selection of grand jury foremen presents

a closer question, answer to which depends in part on the responsibilities of a foreman in the particular system challenged. Thus

the Court had ‘‘assumed without deciding’’ that discrimination in

selection of foremen for state grand juries would violate equal protection in a system in which the judge selected a foreman to serve

as a thirteenth voting juror, and that foreman exercised significant

powers. 92 That situation was distinguished, however, in a due

process challenge to the federal system, where the foreman’s responsibilities are ‘‘essentially clerical’’ and where the selection is

from among the members of an already-chosen jury. 93

Capital Punishment

In McCleskey v. Kemp 94 the Court rejected an equal protection

claim of a black defendant who received a death sentence following

conviction for murder of a white victim, even though a statistical

study showed that blacks charged with murdering whites were
1858 AMENDMENT 14—RIGHTS GUARANTEED

95 481 U.S. at 294. Dissenting Justices Brennan, Blackmun and Stevens challenged this position as inconsistent with the Court’s usual approach to capital punishment, in which greater scrutiny is required. Id. at 340, 347–48, 366. 96 Id. at 297. Discretion is especially important to the role of a capital sentencing jury, which must be allowed to consider any mitigating factor relating to the

defendant’s background or character, or to the nature of the offense; the Court also

cited the ‘‘traditionally ‘wide discretion’’’ accorded decisions of prosecutors. Id. at

296.97The 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. 98 245 U.S. 60 (1917). See also Harmon v. Tyler, 273 U.S. 668 (1927); Richmond

v. Deans, 281 U.S. 704 (1930). 99Shelley v. Kraemer, 334 U.S. 1 (1948); Hurd v. Hodge, 334 U.S. 24 (1948);

Barrows v. Jackson, 346 U.S. 249 (1953). Cf. Corrigan v. Buckley, 271 U.S. 323

(1926). 100 387 U.S. 369 (1967).

more than four times as likely to receive a death sentence in the

state than were defendants charged with killing blacks. The Court

distinguished Batson v. Kentucky by characterizing capital sentencing as ‘‘fundamentally different’’ from jury venire selection; consequently, reliance on statistical proof of discrimination is less

rather than more appropriate. 95 ‘‘Because discretion is essential to

the criminal justice process, we would demand exceptionally clear

proof before we would infer that the discretion has been abused.’’ 96

Also, the Court noted, there is not the same opportunity to rebut

a statistical inference of discrimination; jurors may not be required

to testify as to their motives, and for the most part prosecutors are

similarly immune from inquiry. 97

Housing

Buchanan v. Warley 98 invalidated an ordinance which prohibited blacks from occupying houses in blocks where the greater

number of houses were occupied by whites and which prohibited

whites from doing so where the greater number of houses were occupied by blacks. Although racially restrictive covenants do not

themselves violate the equal protection clause, the judicial enforcement of them, either by injunctive relief or through entertaining

damage actions, does violate the Fourteenth Amendment. 99 Referendum passage of a constitutional amendment repealing a ‘‘fair

housing’’ law and prohibiting further state or local action in that

direction was held unconstitutional in Reitman v. Mulkey, 100

though on somewhat ambiguous grounds, while a state constitutional requirement that decisions of local authorities to build lowrent housing projects in an area must first be submitted to referendum, although other similar decisions were not so limited, was
AMENDMENT 14—RIGHTS GUARANTEED 1859

101 James v. Valtierra, 402 U.S. 137 (1971). The Court did not perceive that either on its face or as applied the provision was other than racially neutral. Justices

Marshall, Brennan, and Blackmun dissented. Id. at 143. 102 Civil Rights Act of 1866, 14 Stat. 27, 42 U.S.C. § 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. 103See Hills v. Gautreaux, 425 U.S. 284 (1976). 104Plessy v. Ferguson, 163 U.S. 537 (1896). 105Gayle 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). 106McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 151 (1914). 107Mitchell v. United States, 313 U.S. 80 (1941). 108Morgan v. Virginia, 328 U.S. 373 (1946); Henderson v. United States, 339

U.S. 816 (1950). 109 364 U.S. 454 (1960). 110 E.g., Mayor & City Council of Baltimore v. Dawson, 350 U.S. 877 (1955)

(public beaches and bathhouses); Holmes v. City of Atlanta, 350 U.S. 879 (1955)

(municipal golf courses); Muir v. Louisville Park Theatrical Ass’n, 347 U.S. 971

(1954) (city lease of park facilities); New Orleans City Park Improvement Ass’n v.

found to accord with the equal protection clause. 101 Private racial

discrimination in the sale or rental of housing is subject to two federal laws prohibiting most such discrimination. 102 Provision of

publicly assisted housing, of course, must be on a nondiscriminatory basis. 103

Other Areas of Discrimination

Transportation.—The ‘‘separate but equal’’ doctrine won Supreme Court endorsement in the transportation context, 104 and its

passing in the education field did not long predate its demise in

transportation as well. 105 During the interval, the Court held invalid a state statute which permitted carriers to provide sleeping

and dining cars for white persons only, 106 held that a carrier’s provision of unequal, or nonexistent, first class accommodations to African Americans violated the Interstate Commerce Act, 107 and

voided both state-required and privately imposed segregation of the

races on interstate carriers as burdens on commerce. 108 Boynton v.

Virginia 109 voided a trespass conviction of an interstate African

American bus passenger who had refused to leave a restaurant

which the Court viewed as an integral part of the facilities devoted

to interstate commerce and therefore subject to the Interstate Commerce Act.

Public Facilities.—In the aftermath of Brown v. Board of

Education, the Court in a lengthy series of per curiam opinions established the invalidity of segregation in publicly provided or supported facilities and of required segregation in any facility or function. 110 A municipality could not operate a racially-segregated park
1860 AMENDMENT 14—RIGHTS GUARANTEED

Detiege, 358 U.S. 54 (1958) (public parks and golf courses); State Athletic Comm’n

v. Dorsey, 359 U.S. 533 (1959) (statute requiring segregated athletic contests); Turner v. City of Memphis, 369 U.S. 350 (1962) (administrative regulation requiring segregation in airport restaurant); Schiro v. Bynum, 375 U.S. 395 (1964) (ordinance requiring segregation in municipal auditorium). 111 Evans v. Newton, 382 U.S. 296 (1966). State courts had removed the city as

trustee but the Court thought the city was still inextricably bound up in the operation and maintenance of the park. Justices Black, Harlan, and Stewart dissented

because they thought the removal of the city as trustee removed the element of

state action. Id. at 312, 315. 112 Evans v. Abney, 396 U.S. 435 (1970). The Court thought that in effectuating

the testator’s intent in the fashion best permitted by the Fourteenth Amendment,

the state courts engaged in no action violating the equal protection clause. Justices

Douglas and Brennan dissented. Id. at 448, 450. 113Palmer v. Thompson, 403 U.S. 217 (1971). The Court found that there was

no official encouragement of discrimination through the act of closing the pools and

that inasmuch as both white and black citizens were deprived of the use of the pools

there was no unlawful discrimination. Justices White, Brennan, and Marshall dissented, arguing that state action taken solely in opposition to desegregation was impermissible, both in defiance of the lower court order and because it penalized African Americans for asserting their rights. Id. at 240. Justice Douglas also dissented.

Id. 231. 114Loving v. Virginia, 388 U.S. 1 (1967). 115McLaughlin v. Florida, 379 U.S. 184 (1964). 116Palmore v. Sidoti, 466 U.S. 429 (1984). 117 Johnson v. Virginia, 373 U.S. 61 (1963). 118 Hamilton v. Alabama, 376 U.S. 650 (1964) (reversing contempt conviction of

witness who refused to answer questions so long as prosecutor addressed her by her

first name). 119Lee v. Washington, 390 U.S. 333 (1968); Wilson v. Kelley, 294 F. Supp. 1005

(N.D.Ga.), aff’d, 393 U.S. 266 (1968).

pursuant to a will which left the property for that purpose and

which specified that only whites could use the park, 111 but it was

permissible for the state courts to hold that the trust had failed

and to imply a reverter to the decedent’s heirs. 112 A municipality

under court order to desegregate its publicly-owned swimming

pools was held to be entitled to close the pools instead, so long as

it entirely ceased operation of them. 113

Marriage.—Statutes which forbid the contracting of marriage

between persons of different races are unconstitutional 114 as are

statutes which penalize interracial cohabitation. 115 Similarly, a

court may not deny custody of a child based on a parent’s remarriage to a person of another race and the presumed ‘‘best interests

of the child’’ to be free from the prejudice and stigmatization that

might result. 116

Judicial System.—Segregation in courtrooms is unlawful and

may not be enforced through contempt citations for disobedience 117

or through other means. Treatment of parties to or witnesses in judicial actions based on their race is impermissible. 118 Jail inmates

have a right not to be segregated by race unless there is some overriding necessity arising out of the process of keeping order. 119
AMENDMENT 14—RIGHTS GUARANTEED 1861

120 Anderson v. Martin, 375 U.S. 399 (1964). 121Tancil v. Woolls, 379 U.S. 19 (1964) (summarily affirming lower court rulings

sustaining law requiring that every divorce decree indicate race of husband and

wife, but voiding laws requiring separate lists of whites and African Americans in

voting, tax and property records). 122 E.g., Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961); Turner

v. City of Memphis, 369 U.S. 350 (1962); Peterson v. City of Greenville, 373 U.S.

244 (1963); Lombard v. Louisiana, 373 U.S. 267 (1963); Robinson v. Florida, 378

U.S. 153 (1964). 123Title 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). 124See infra, pp. 1946–50. 125 E.g., Hadnott v. Amos, 394 U.S. 358 (1971); Hunter v. Underwood, 471 U.S.

222 (1985) (disenfranchisement for crimes involving moral turpitude adopted for

purpose of racial discrimination). 126 E.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960); United Jewish Orgs. v.

Carey, 430 U.S. 144 (1977); Rogers v. Lodge, 458 U.S. 613 (1982).

Public Designation.—It is unconstitutional to designate candidates on the ballot by race 120 and apparently any sort of designation by race on public records is suspect although not necessarily

unlawful. 121

Public Accommodations.—Whether or not discrimination

practiced by operators of retail selling and service establishments

gave rise to a denial of constitutional rights occupied the Court’s

attention considerably in the early 1960’s, but it avoided finally deciding one way or the other, generally finding forbidden state action in some aspect of the situation. 122 Passage of the 1964 Civil

Rights Act obviated any necessity to resolve the issue. 123

Elections.—While, of course, the denial of the franchise on the

basis of race or color violates the Fifteenth Amendment and a series of implementing statutes enacted by Congress, 124 the administration of election statutes so as to treat white and black voters or

candidates differently can constitute a denial of equal protection as

well. 125 Additionally, cases of gerrymandering of electoral districts

and the creation or maintenance of electoral practices that dilute

and weaken black and other minority voting strength is subject to

Fourteenth and Fifteenth Amendment and statutory attack. 126

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
1862 AMENDMENT 14—RIGHTS GUARANTEED

127While the emphasis is upon governmental action, private affirmative actions

may implicate statutory bars to uses of race. E.g., McDonald v. Santa Fe Trail

Transp. Co., 427 U.S. 273 (1976), held, not in the context of an affirmative action

program, that whites were as entitled as any group to protection of federal laws

banning racial discrimination in employment. The Court emphasized that it was not

passing at all on the permissibility of affirmative action programs. Id. at 280 n.8.

In United Steelworkers v. Weber, 443 U.S. 193 (1979), the Court held that title VII

did not prevent employers from instituting voluntary, race-conscious affirmative action plans. Accord, Johnson v. Transportation Agency, 480 U.S. 616 (1987). Nor does

title VII prohibit a court from approving a consent decree providing broader relief

than the court would be permitted to award. Local 93, Int’l Ass’n of Firefighters v.

City of Cleveland, 478 U.S. 501 (1986). And, court-ordered relief pursuant to title

VII may benefit persons not themselves the victims of discrimination. Local 28 of

the Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421 (1986). 128 E.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 22–

25 (1971). 129Programs 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. 130The 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. 131 430 U.S. 144 (1977). Chief Justice Burger dissented, id., 180, and Justice

Marshall did not participate.

upon nonmembers of the class. 127 While the Court in prior cases

had accepted both the use of race and other suspect criteria as

valid factors in formulating remedies to overcome discrmination 128

and the according of preferences to class members when the class

had previously been the object of discrimination, 129 it had never

until recently given plenary review to programs that expressly used

race as the prime consideration in the awarding of some public

benefit. 130

In United Jewish Organizations v. Carey 131 the State, in order

to comply with the Voting Rights Act and to obtain the United

States Attorney General’s approval for a redistricting law, had

drawn a plan which consciously used racial criteria to create a certain number of districts with nonwhite populations large enough to

permit the election of nonwhite candidates in spite of the lower voting turnout of nonwhites. In the process a Hasidic Jewish community previously located entirely within one senate and one assembly

district was divided between two senate and two assembly districts,

and members of that community sued, alleging that the value of

their votes had been diluted solely for the purpose of achieving a

racial quota. The Supreme Court approved the districting, although

the fragmented majority of seven concurred in no majority opinion.

Justice White, delivering the judgment of the Court, based the

result on alternative grounds. First, because the redistricting took
AMENDMENT 14—RIGHTS GUARANTEED 1863

132 Id. at 155–65. Joining this part of the opinion were Justices Brennan,

Blackmun, and Stevens. 133 Id. at 165–68. Joining this part of the opinion were Justices Stevens and

Rehnquist. In a separate opinion, Justice Brennan noted that preferential race policies were subject to several substantial arguments: (1) they may disguise a policy

that perpetuates disadvantageous treatment; (2) they may serve to stimulate society’s latent race consciousness; (3) they may stigmatize recipient groups as much

as overtly discriminatory practices against them do; (4) they may be perceived by

many as unjust. The presence of the Voting Rights Act and the Attorney General’s

supervision made the difference to him in this case. Id. at 168. Justices Stewart and

Powell concurred, agreeing with Justice White that there was no showing of a purpose on the legislature’s part to discriminate against white voters and that the effect

of the plan was insufficient to invalidate it. Id. at 179. 134 438 U.S. 265 (1978).

place pursuant to the administration of the Voting Rights Act, the

Justice argued that compliance with the Act necessarily required

States to be race conscious in the drawing of lines so as not to dilute minority voting strength, that this requirement was not dependent upon a showing of past discrimination, and that the States

retained discretion to determine just what strength minority voters

needed in electoral districts in order to assure their proportional

representation. Moreover, the creation of the certain number of districts in which minorities were in the majority was reasonable

under the circumstances. 132

Second, Justice White wrote that, irrespective of what the Voting Rights Act may have required, what the State had done did not

violate either the Fourteenth or the Fifteenth Amendment. This

was so because the plan, even though it used race in a purposeful

manner, represented no racial slur or stigma with respect to whites

or any other race; the plan did not operate to minimize or unfairly

cancel out white voting strength because as a class whites would

be represented in the legislature in accordance with their proportion of the population in the jurisdiction. 133

With the Court so divided, light on the constitutionality of affirmative action was anticipated in Regents of the University of

California v. Bakke, 134 but again the Court fragmented. The Davis

campus medical school each year admitted 100 students; the school

set aside 16 of those seats for disadvantaged minority students,

who were qualified but not necessarily as qualified as those winning admission to the other 84 places. Twice denied admission,

Bakke sued, arguing that had not the 16 positions been set aside

he could have been admitted. The state court ordered him admitted

and ordered the school not to consider race in admissions. By two

5-to–4 votes, the Supreme Court affirmed the order admitting

Bakke but set aside the order forbidding the consideration of race

in admissions.
1864 AMENDMENT 14—RIGHTS GUARANTEED

135 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. 136 438 U.S. at 408–21 (Justices Stevens, Stewart, and Rehnquist and Chief Justice Burger). 137 Id. at 284–87 (Justice Powell), 328–55 (Justices Brennan, White, Marshall,

and Blackmun). 138 Id. at 355–79 (Justices Brennan, White, Marshall, and Blackmun). The intermediate standard of review adopted by the four Justices is that formulated for gender cases. ‘‘Racial classifications designed to further remedial purposes ‘must serve

important governmental objectives and must be substantially related to achievement of those objectives.’’’ Id. at 359. 139 Id. at 287–320.

Four Justices did not reach the constitutional question. In

their view, Title VI of the Civil Rights Act of 1964 135 outlawed the

college’s program and made unnecessary any consideration of the

Constitution. They thus would admit Bakke and bar use of race in

admissions. 136 The remaining five Justices agreed among themselves that Title VI, on its face and in light of its legislative history, proscribed only what the equal protection clause proscribed. 137 They thus reached the constitutional issue but resolved

it differently. Four Justices, in an opinion by Justice Brennan, argued that racial classifications designed to further remedial purposes were not foreclosed by the Constitution under appropriate

circumstances. Even ostensibly benign racial classifications could

be misused and produce stigmatizing effects; therefore, they must

be searchingly scrutinized by courts to ferret out these instances.

But benign racial preferences, unlike invidious discriminations,

need not be subjected to strict scrutiny; instead, an intermediate

scrutiny would do. As applied, then, this review would enable the

Court to strike down any remedial racial classification that stigmatized any group, that singled out those least well represented in

the political process to bear the brunt of the program, or that was

not justified by an important and articulated purpose. 138

Justice Powell argued that all racial classifications are suspect

and require strict scrutiny. Since none of the justifications asserted

by the college met this high standard of review, he would have invalidated the program. But he did perceive justifications for a less

rigid consideration of race as one factor among many in an admissions program; diversity of student body was an important and protected interest of an academy and would justify an admissions set

of standards that made affirmative use of race. Ameliorating the effects of past discrimination would justify the remedial use of race,

the Justice thought, when the entity itself had been found by appropriate authority to have discriminated, but the college could not

inflict harm upon other groups in order to remedy past societal discrimination. 139 Justice Powell thus joined the first group in agree-
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140See id., 319–320 (Justice Powell). 141 448 U.S. 448 (1980). Justice Stewart, joined by Justice Rehnquist, dissented

in one opinion, id. at 522, while Justice Stevens dissented in another. Id. at 532. 142 Id. at 456–92. Justices White and Powell joined this opinion. Justice Powell

also concurred in a separate opinion, id. at 495, which qualified to some extent his

agreement with the Chief Justice. 143 Id. at 517. 144 Id. at 473–480. The program was an exercise of Congress’ spending power,

but the constitutional objections raised had not been previously resolved in that context. The plurality therefore turned to Congress’ regulatory powers, which in this

case undergirded the spending power, and found the power to repose in the commerce clause with respect to private contractors and in § 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.

ing that Bakke should be admitted, but he joined the second group

in permitting the college to consider race to some degree in its admissions. 140

Finally, in Fullilove v. Klutznick, 141 the Court resolved most of

the outstanding constitutional question regarding the validity of

race-conscious affirmative action programs. Although again there

was no majority opinion of the Court, the series of opinions by the

six Justices voting to uphold a congressional provision requiring

that at least ten percent of public works funds be set aside for minority business enterprises all recognized that alleviation and remediation of past societal discrimination was a legitimate goal and

that race was a permissible classification to use in remedying the

present effects of past discrimination. Judgment of the Court was

issued by Chief Justice Burger, who emphasized Congress’ preeminent role under the Commerce clause and under the Fourteenth

Amendment to find as a fact the existence of past discrimination

and its continuing effects and to implement remedies which were

race conscious in order to cure those effects. 142 The principal concurring opinion by Justice Marshall applied the Brennan analysis

in Bakke, utilizing middle-tier scrutiny to hold that the race conscious set-aside was ‘‘substantially related to the achievement of

the important and congressionally articulated goal of remedying

the present effects of past discrimination.’’ 143

Taken together, the opinions recognize that at least in Congress there resides the clear power to make the findings that will

form the basis for a judgment of the necessity to use racial classifications in an affirmative way; these findings need not be extensive or express and may be collected in many ways. Whether federal agencies or state legislatures and state agencies have the same

breadth and leeway to make findings and formulate remedies was

left unsettled but that they have some such power seems evident. 144 Further, while the opinions emphasized the limited duration and magnitude of the set-aside program, they appeared to at-
1866 AMENDMENT 14—RIGHTS GUARANTEED

145 Id. at 484–85, 489 (Chief Justice Burger), 513–15 (Justice Powell).

146 Id. at 484–489 (Chief Justice Burger), 514–515 (Justice Powell), 520–521

(Justice Marshall).

147Guidance on constitutional issues is not necessarily afforded by cases arising

under Title VII of the Civil Rights Act, the Court having asserted that ‘‘the statutory

prohibition with which the employer must contend was not intended to extend as

far as that of the Constitution,’’ and that ‘‘voluntary employer action can play a crucial role in furthering Title VII’s purpose of eliminating the effects of discrimination

in the workplace.’’ Johnson v. Transportation Agency, 480 U.S. 616, 628 n.6, 630

(1987) (upholding a local governmental agency’s voluntary affirmative action plan

predicated upon underrepresentation of women rather than upon past discriminatory practices by that agency) (emphasis original). The constitutionality of the agency’s plan was not challenged. See id. at 620 n.2.

148 476 U.S. 267 (1986).

149 480 U.S. 149 (1987).

150 476 U.S. at 294. A plurality of Justices in Wygant thought that past societal

discrimination alone is insufficient to justify racial classifications; they would require some convincing evidence of past discrimination by the governmental unit involved. 476 U.S. at 274–76 (opinion of Justice Powell, joined by Chief Justice Burger

and by Justices Rehnquist and O’Connor).

tach no constitutional significance to these limitations, thus leaving

the way open for programs of a scope sufficient to remedy all the

identified effects of past discrimination. 145 But the most important

part of these opinions rests in the clear sustaining of race classifications as permissible in remedies and in the approving of some

forms of racial quotas. Rejected were the arguments that a stigma

attaches to those minority beneficiaries of such programs, that burdens are placed on innocent third parties, and that the program is

overinclusive, benefitting some minority members who had suffered

no discrimination. 146

The Court remains divided in ruling on constitutional challenges 147 to affirmative action plans. As a general matter, authority to apply racial classifications is at its greatest when Congress

is acting pursuant to section 5 of the Fourteenth Amendment or

other of its powers, or when a court is acting to remedy proven discrimination. But impact on disadvantaged non-minorities can also

be important. Two recent cases illustrate the latter point. In

Wygant v. Jackson Board of Education, 148 the Court invalidated a

provision of a collective bargaining agreement giving minority

teachers a preferential protection from layoffs; in United States v.

Paradise, 149 the Court upheld as a remedy for past discrimination

a court-ordered racial quota in promotions. Justice White, concurring in Wygant, emphasized the harsh, direct effect of layoffs on affected non-minority employees. 150 By contrast, a plurality of Justices in Paradise viewed the remedy in that case as affecting nonminorities less harshly than did the layoffs in Wygant, since the
AMENDMENT 14—RIGHTS GUARANTEED 1867

151 480 U.S. at 182–83 (opinion of Justice Brennan, joined by Justices Marshall,

Blackmun, and Powell). A majority of Justices emphasized that the egregious nature

of the past discrimination by the governmental unit justified the ordered relief. 480

U.S. at 153 (opinion of Justice Brennan), id. at 189 (Justice Stevens). 152 488 U.S. 469 (1989). Croson was decided by a 6–3 vote. The portions of Justice O’Connor’s opinion adopted as the opinion of the Court were joined by Chief

Justice Rehnquist and by Justices White, Stevens, and Kennedy. The latter two Justices joined only part of Justice O’Connor’s opinion; each added a separate concurring opinion. Justice Scalia concurred separately; Justices Marshall, Brennan, and

Blackmun dissented. 153 497 U.S. 547 (1990). This was a 5–4 decision, Justice Brennan’s opinion of

the Court being joined by Justices White, Marshall, Blackmun, and Stevens. Justice

O’Connor wrote a dissenting opinion joined by the Chief Justice and by Justices

Scalia and Kennedy, and Justice Kennedy added a separate dissenting opinion

joined by Justice Scalia. 154 497 U.S. at 564–65. 155 488 U.S. at 501–02.

promotion quota would merely delay promotions of those affected,

rather than cause the loss of their jobs. 151

A clear distinction has been drawn between federal and state

power to apply racial classifications. In City of Richmond v. J.A.

Croson Co., 152 the Court invalidated a minority set-aside requirement that holders of construction contracts with the city subcontract at least 30% of the dollar amount to minority business enterprises. Applying strict scrutiny, the Court found Richmond’s program to be deficient because it was not tied to evidence of past discrimination in the city’s construction industry. By contrast, the

Court in Metro Broadcasting, Inc. v. FCC 153 applied a more lenient

standard of review in upholding two racial preference policies used

by the FCC in the award of radio and television broadcast licenses.

The FCC policies, the Court explained, are ‘‘benign, race-conscious

measures’’ that are ‘‘substantially related’’ to the achievement of an

‘‘important’’ governmental objective of broadcast diversity. 154

In Croson, the Court ruled that the city had failed to establish

a ‘‘compelling’’ interest in the racial quota system because it failed

to identify past discrimination in its construction industry. Mere

recitation of a ‘‘benign’’ or remedial purpose will not suffice, the

Court concluded, nor will reliance on the disparity between the

number of contracts awarded to minority firms and the minority

population of the city. ‘‘[W]here special qualifications are necessary,

the relevant statistical pool for purposes of demonstrating exclusion

must be the number of minorities qualified to undertake the particular task.’’ 155 The overinclusive definition of minorities, including U.S. citizens who are ‘‘Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts,’’ also ‘‘impugn[ed] the city’s claim of remedial motivation,’’ there having been ‘‘no evidence’’ of any past
1868 AMENDMENT 14—RIGHTS GUARANTEED

156 Id. at 506. 157 Id. at 508. 158 497 U.S. at 600. Justice O’Connor’s dissenting opinion contended that the

case ‘‘does not present ‘a considered decision of the Congress and the President.’’’

Id. at 607 (quoting Fullilove, 448 U.S. at 473). 159 497 U.S. at 563 & n.11. For the dissenting views of Justice O’Connor see id.

at 606–07. See also Croson, 488 U.S. at 504 (opinion of Court). 160 Because Justice Brennan, who authored the Court’s opinion in Metro Broadcasting, retired at the end of the 1989–90 Term, the continuing vitality of the opinion bears watching.

discrimination against non-Blacks in the Richmond construction industry. 156

It followed that Richmond’s set-aside program also was not

‘‘narrowly tailored’’ to remedy the effects of past discrimination in

the city: an individualized waiver procedure made the quota approach unnecessary, and a minority entrepreneur ‘‘from anywhere

in the country’’ could obtain an absolute racial preference. 157

At issue in Metro Broadcasting were two minority preference

policies of the FCC, one recognizing an ‘‘enhancement’’ for minority

ownership and participation in management when the FCC considers competing license applications, and the other authorizing a

‘‘distress sale’’ transfer of a broadcast license to a minority enterprise. These racial preferences—unlike the set-asides at issue in

Fullilove—originated as administrative policies rather than statutory mandates. Because Congress later endorsed these policies,

however, the Court was able to conclude that they bore ‘‘the imprimatur of longstanding congressional support and direction.’’ 158

Metro Broadcasting is noteworthy for several other reasons as

well. The Court rejected the dissent’s argument—seemingly accepted by a Croson majority—that Congress’s more extensive authority

to adopt racial classifications must trace to section 5 of the Fourteenth Amendment, and instead ruled that Congress also may rely

on race-conscious measures in exercise of its commerce and spending powers. 159 This meant that the governmental interest

furthered by a race-conscious policy need not be remedial, but could

be a less focused interest such as broadcast diversity. Secondly, as

noted above, the Court eschewed strict scrutiny analysis: the governmental interest need only be ‘‘important’’ rather than ‘‘compelling,’’ and the means adopted need only be ‘‘substantially related’’

rather than ‘‘narrowly tailored’’ to furthering the interest. This

means that, for the time being, at least, federal legislation imposing racial preferences need pass a lower hurdle than state and local

legislation regardless of whether the federal legislation is an exercise of section 5 power. 160
AMENDMENT 14—RIGHTS GUARANTEED 1869

1Graham 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, supra, at 376–80. 2 Yick Wo v. Hopkins, 118 U.S. 356 (1886).

3McGready v. Virginia, 94 U.S. 391 (1877); Patsone v. Pennsylvania, 232 U.S.

138 (1914) (limiting aliens’ rights to develop natural resources); Hauenstein v.

Lynham, 100 U.S. 483 (1880); Blythe v. Hinckley, 180 U.S. 333 (1901) (restriction

of devolution of property to aliens); Terrace v. Thompson, 263 U.S. 197 (1923);

Porterfield v. Webb, 263 U.S. 225 (1923); Webb v. O’Brien, 263 U.S. 313 (1923);

Frick v. Webb, 263 U.S. 326 (1923) (denial of right to own and acquire land); Heim

v. McCall, 239 U.S. 175 (1915); People v. Crane, 214 N.Y. 154, 108 N.E. 427, aff’d,

239 U.S. 195 (1915) (barring public employment to aliens); Ohio ex rel. Clarke v.

Deckebach, 274 U.S. 392 (1927) (prohibiting aliens from operating poolrooms). The

Court struck down a statute restricting the employment of aliens by private employers, however. Truax v. Raich, 239 U.S. 33 (1915). 4 320 U.S. 81, 100 (1943).

5 323 U.S. 214, 216 (1944).

THE NEW EQUAL PROTECTION

Classifications Meriting Close Scrutiny

Alienage and Nationality.—‘‘It has long been settled . . .

that the term ‘person’ [in the equal protection clause] encompasses

lawfully admitted resident aliens as well as citizens of the United

States and entitles both citizens and aliens to the equal protection

of the laws of the State in which they reside.’’ 1 Thus, one of the

earliest equal protection decisions struck down the administration

of a facially-lawful licensing ordinance which was being applied to

discriminate against Chinese. 2 But the Court in many cases thereafter recognized a permissible state interest in distinguishing between its citizens and aliens by restricting enjoyment of resources

and public employment to its own citizens. 3 But in Hirabayashi v.

United States, 4 it was announced that ‘‘[d]istinctions between citizens solely because of their ancestry’’ was ‘‘odius to a free people

whose institutions are founded upon the doctrine of equality.’’ And

in Korematsu v. United States, 5 classifications based upon race and

nationality were said to be suspect and subject to the ‘‘most rigid

scrutiny.’’ These dicta resulted in a 1948 decision which appeared
1870 AMENDMENT 14—RIGHTS GUARANTEED

6Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948).

7 Id. at 420. The decision was preceded by Oyama v. California, 332 U.S. 633

(1948), which was also susceptible to being read as questioning the premise of the

earlier cases. 8Graham v. Richardson, 403 U.S. 365, 372 (1971).

9 413 U.S. 634 (1973).

10 Id. at 647–49. See also Foley v. Connelie, 435 U.S. 291, 296 (1978). Aliens can

be excluded from voting, Skatfe v. Rorex, 553 P.2d 830 (Colo. 1976), appeal dismissed for lack of substantial federal question, 430 U.S. 961 (1977), and can be excluded from service on juries. Perkins v. Smith, 370 F. Supp. 134 (D.Md. 1974) (3-

judge court), aff’d, 426 U.S. 913 (1976). 11Sugarman 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.

to call into question the rationale of the ‘‘particular interest’’ doctrine under which earlier discriminations had been justified. There

the Court held void a statute barring issuance of commerical fishing licenses to persons ‘‘ineligible to citizenship,’’ which in effect

meant resident alien Japanese. 6 ‘‘The Fourteenth Amendment and

the laws adopted under its authority thus embody a general policy

that all persons lawfully in this country shall abide ‘in any state’

on an equality of legal privileges with all citizens under nondiscriminatory laws.’’ Justice Black said for the Court that ‘‘the

power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.’’ 7

Announcing ‘‘that classifications based on alienage . . . are inherently suspect and subject to close scrutiny,’’ the Court struck

down state statutes which either wholly disqualified resident aliens

for welfare assistance or imposed a lengthy durational residency requirement on eligibility. 8 Thereafter, in a series of decisions, the

Court adhered to its conclusion that alienage was a suspect classification and voided a variety of restrictions. More recently, however, it has created a major ‘‘political function’’ exception to strict

scrutiny review, which shows some potential of displacing the previous analysis almost entirely.

In Sugarman v. Dougall, 9 the Court voided the total exclusion

of aliens from a State’s competitive civil service. A State’s power ‘‘to

preserve the basic conception of a political community’’ enables it

to prescribe the qualifications of its officers and voters, 10 the Court

held, and this power would extend ‘‘also to persons holding state

elective or important nonelective executive, legislative, and judicial

positions, for officers who participate directly in the formulation,

execution, or review of broad public policy perform functions that

go to the heart of representative government.’’ 11 But a flat ban

upon much of the State’s career public service, both of policy-making and non-policy-making jobs, ran afoul of the requirement that

in achieving a valid interest through the use of a suspect classifica-
AMENDMENT 14—RIGHTS GUARANTEED 1871

12 Justice Rehnquist dissented. Id. at 649. In the course of the opinion, the

Court held inapplicable the doctrine of ‘‘special public interest,’’ the idea that a

State’s concern with the restriction of the resources of the State to the advancement

and profit of its citizens is a valid basis for discrimination against out-of-state citizens and aliens generally, but it did not declare the doctrine invalid. Id. at 643–

45. The ‘‘political function’’ exception is inapplicable to notaries public, who do not

perform functions going to the heart of representative government. Bernal v. Fainter, 467 U.S. 216 (1984). 13 In re Griffiths, 413 U.S. 717 (1973). Chief Justice Burger and Justice

Rehnquist dissented. Id. at 730, and 649 (Sugarman dissent also applicable to Griffiths).

14 Examining Board v. Flores de Otero, 426 U.S. 572 (1976). Since the jurisdiction was Puerto Rico, the Court was not sure whether the requirement should be

governed by the Fifth or Fourteenth Amendment but deemed the question immaterial since the same result would be achieved. The quoted expression is from Truax

v. Raich, 239 U.S. 33, 41 (1915). 15 432 U.S. 1 (1977). 16 Id. at 9. Chief Justice Burger and Justices Powell, Rehnquist, and Stewart

dissented. Id. at 12, 15, 17. Justice Rehnquist’s dissent argued that the nature of

the disqualification precluded it from being considered suspect.

tion the State must employ means that are precisely drawn in light

of the valid purpose. 12

State bars against the admission of aliens to the practice of

law were also struck down, the Court holding that the State had

not met the ‘‘heavy burden’’ of showing that its denial of admission

to aliens was necessary to accomplish a constitutionally permissible

and substantial interest. The State’s admitted interest in assuring

the requisite qualifications of persons licensed to practice law could

be adequately served by judging applicants on a case-by-case basis

and in no sense could the fact that a lawyer is considered to be an

officer of the court serve as a valid justification for a flat prohibition. 13 Nor could Puerto Rico offer a justification for excluding

aliens from one of the ‘‘common occupations of the community,’’

hence its bar on licensing aliens as civil engineers was voided. 14

In Nyquist v. Mauclet, 15 the Court seemed to expand the doctrine. Challenged was a statute that restricted the receipt of scholarships and similar financial support to citizens or to aliens who

were applying for citizenship or who filed a statement affirming

their intent to apply as soon as they became eligible. Therefore,

since any alien could escape the limitation by a voluntary act, the

disqualification was not aimed at aliens as a class, nor was it based

on an immutable characteristic possessed by a ‘‘discrete and insular minority’’—the classification that had been the basis for declaring alienage a suspect category in the first place. But the Court

voided the statute. ‘‘The important points are that § 661(3) is directed at aliens and that only aliens are harmed by it. The fact

that the statute is not an absolute bar does not mean that it does

not discriminate against the class.’’ 16 Two proffered justifications
1872 AMENDMENT 14—RIGHTS GUARANTEED

17Foley v. Connelie, 435 U.S. 291, 295 (1978). The opinion was by Chief Justice

Burger and the quoted phrase was from his dissent in Nyquist v. Mauclet, 432 U.S.

1, 14 (1977). Justices Marshall, Stevens, and Brennan dissented. Id. at 302, 307. 18 Id.at 295–96. Formally following Sugarman v. Dougall, supra, the opinion

considerably enlarged the exception noted in that case; see also Nyquist v. Mauclet,

432 U.S. 1, 11 (1977) (emphasizing the ‘‘narrowness of the exception’’). Concurring

in Foley, supra, 300, Justice Stewart observed that ‘‘it is difficult if not impossible

to reconcile the Court’s judgment in this case with the full sweep of the reasoning

and authority of some of our past decisions. It is only because I have become increasingly doubtful about the validity of those decisions (in at least some of which

I concurred) that I join the opinion of the Court in this case.’’ On the other hand,

Justice Blackmun, who had written several of the past decisions, including Mauclet,

concurred also, finding the case consistent. Id. 19 Id. at 297–98. In Elrod v. Burns, 427 U.S. 347 (1976), barring patronage dismissals of police officers, the Court had nonetheless recognized an exception for policymaking officers which it did not extend to the police. 20 441 U.S. 68 (1979). The opinion, by Justice Powell, was joined by Chief Justice Burger and Justices Stewart, White, and Rehnquist. Dissenting were Justices

Blackmun, Brennan, Marshall, and Stevens. The disqualification standard was of

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.’ ’’ 17 Upholding

a state restriction against aliens qualifying as state policemen, the

Court reasoned that the permissible distinction between citizen and

alien is that the former ‘‘is entitled to participate in the processes

of democratic decisionmaking. Accordingly, we have recognized ‘a

State’s historic power to exclude aliens from participation in its

democratic political institutions,’ . . . as part of the sovereign’s obligation ‘‘‘to preserve the basic conception of a political community.’ ’’ 18 When a State acts thusly by classifying against aliens, its

action is not subject to strict scrutiny but rather need only meet

the rational basis test. It is therefore permissible to reserve to citizens offices having the ‘‘most important policy responsibilities,’’ a

reservation drawn from Sugarman, but the critical factor in this

case is the analysis finding that the police function is ‘‘one of the

basic functions of government.’’ ‘‘The execution of the broad powers

vested’’ in police officers ‘‘affects members of the public significantly

and often in the most sensitive areas of daily life. . . . Clearly the

exercise of police authority calls for a very high degree of judgment

and discretion, the abuse or misuse of which can have serious impact on individuals. The office of a policeman is in no sense one of

‘the common occupations of the community’. . . .’’ 19

Continuing to enlarge the exception, the Court in Ambach v.

Norwick 20 upheld a bar to qualifying as a public school teacher for
AMENDMENT 14—RIGHTS GUARANTEED 1873

course, that held invalid as a disqualification for receipt of educational assistance

in Nyquist v. Mauclet, 432 U.S. 1 (1977). 21 Ambach v. Norwick, 441 U.S. 68, 75 (1979). 22 Id. 23 Id. at 75–80. The quotation, id. at 76, is from Sugarman v. Dougall, 413 U.S.

634, 647 (1973). 24 454 U.S. 432 (1982). Joining the opinion of the Court were Justices White,

Powell, Rehnquist, O’Connor, and Chief Justice Burger. Dissenting were Justices

Blackmun, Brennan, Marshall, and Stevens. Id. at 447. 25 Id. at 442. 26 Id. at 445.

resident aliens who have not manifested an intention to apply for

citizenship. The ‘‘governmental function’’ test took on added significance, the Court saying that the ‘‘distinction between citizens and

aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State.’’ 21 Thus,

‘‘governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of

noncitizens.’’ 22 Teachers, the Court thought, because of the role of

public education in inculcating civic values and in preparing children for participation in society as citizens and because of the responsibility and discretion they have in fulfilling that role, perform

a task that ‘‘go[es] to the heart of representative government.’’ 23

The citizenship requirement need only bear a rational relationship

to the state interest, and the Court concluded it clearly did so.

Then, in Cabell v. Chavez-Salido, 24 the Court sustained a

state law imposing a citizenship requirement upon all positions

designated as ‘‘peace officers,’’ upholding in context that eligibility

prerequisite for probation officers. First, the Court held that the extension of the requirement to an enormous range of people who

were variously classified as ‘‘peace officers’’ did not reach so far nor

was it so broad and haphazard as to belie the claim that the State

was attempting to ensure that an important function of government be in the hands of those having a bond of citizenship. ‘‘[T]he

classifications used need not be precise; there need only be a substantial fit.’’ 25 As to the particular positions, the Court held that

‘‘they, like the state troopers involved in Foley, sufficiently partake

of the sovereign’s power to exercise coercive force over the individual that they may be limited to citizens.’’ 26

Thus, the Court so far has drawn a tripartite differentiation

with respect to governmental restrictions on aliens. First, it has

disapproved the earlier line of cases and now would foreclose attempts by the States to retain certain economic benefits, primarily

employment and opportunities for livelihood, exclusively for citizens. Second, when government exercises principally its spending

functions, such as those with respect to public employment gen-
1874 AMENDMENT 14—RIGHTS GUARANTEED

27 Id. at 438–39 28Thus, 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. 29Plyler v. Doe, 457 U.S. 432 (1982). Joining the opinion of the Court were Justices Brennan, Marshall, Blackmun, Powell, and Stevens. Dissenting were Chief

Justice Burger and Justices White, Rehnquist, and O’Connor. Id. at 242. 30 In San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973), while holding

that education is not a fundamental interest, the Court expressly reserved the question whether a total denial of education to a class of children would infringe upon

a fundamental interest. Id.at 18, 25 n.60, 37. The Plyler Court’s emphasis upon the

total denial of education and the generally suspect nature of alienage classifications

left ambiguous whether the state discrimination would have been subjected to strict

scrutiny if it had survived intermediate scrutiny. Justice Powell thought the Court

had rejected strict scrutiny, 457 U.S. at 238 n.2 (concurring), while Justice

Blackmun thought it had not reached the question, id. at 235 n.3 (concurring). Indeed, their concurring opinions seem directed more toward the disability visited

upon innocent children than the broader complex of factors set out in the opinion

of the Court. Id.at 231, 236.

erally and to eligibility for public benefits, its classifications with

an adverse impact on aliens will be strictly scrutinized and usually

fail. Third, when government acts in its sovereign capacity, when

it acts within its constitutional prerogatives and responsibilities to

establish and operate its own government, its decisions with respect to the citizenship qualifications of an appropriately designated class of public office holders will be subject only to traditional rational basis scrutiny. 27 However, the ‘‘political function’’

standard is elastic, and so long as disqualifications are attached to

specific occupations 28 rather than to the civil service in general, as

in Sugarman, the concept seems capable of encompassing the exclusion.

When confronted with a state statute that authorized local

school boards to exclude from public schools alien children who

were not legally admitted to the United States, the Court determined that an intermediate level of scrutiny was appropriate and

found that the proffered justifications did not sustain the classification. 29 Inasmuch as it was clear that the undocumented status of

the children was not irrelevant to valid government goals and inasmuch as the Court had previously held that access to education

was not a ‘‘fundamental interest’’ which triggered strict scrutiny of

governmental distinctions relating to education, 30 the Court’s decision to accord intermediate review was based upon an amalgam of

at least three factors. First, alienage was a characteristic that provokes special judicial protection when used as a basis for discrimination. Second, the children were innocent parties who were having

a particular onus imposed on them because of the misconduct of

their parents. Third, the total denial of an education to these chil-
AMENDMENT 14—RIGHTS GUARANTEED 1875

31 Id. at 223–24.

32 Rejected state interests included preserving limited resources for its lawful

residents, deterring an influx of illegal aliens, avoiding the special burden caused

by these children, and serving children who were more likely to remain in the State

and contribute to its welfare. Id. at 227–30.

33 Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873). The cases involving

alleged discrimination against women contain large numbers of quaint quotations

from unlikely sources. Upholding a law which imposed a fee upon all persons engaged in the laundry business, but excepting businesses employing not more than

two women, Justice Holmes said: ‘‘If Montana deems it advisable to put a lighter

burden upon women than upon men with regard to an employment that our people

commonly regard as more appropriate for the former, the Fourteenth Amendment

does not interfere by creating a fictitious equality where there is a real difference.’’

Quong Wing v. Kirkendall, 223 U.S. 59, 63 (1912). And upholding a law prohibiting

most women from tending bar, Justice Frankfurter said: ‘‘The fact that women may

now have achieved the virtues that men have long claimed as their prerogatives and

now indulge in vices that men have long practiced, does not preclude the States

from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic. . . . The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires

them to keep abreast of the latest scientific standards.’’ Goesaert v. Cleary, 335 U.S.

464, 466 (1948).

34Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875) (privileges and immunities).

dren would stamp them with an ‘‘enduring disability’’ that would

harm both them and the State all their lives. 31 The Court evaluated each of the State’s attempted justifications and found none of

them satisfying the level of review demanded. 32 It seems evident

that Plyler v. Doe is a unique case and that whatever it may doctrinally stand for, a sufficiently similar factual situation calling for

application of its standards is unlikely to be replicated.

Sex.—Shortly after ratification of the Fourteenth Amendment,

the refusal of Illinois to license a woman to practice law was challenged before the Supreme Court, and the Court rejected the challenge in tones which prevailed well into the twentieth century.

‘‘The civil law, as well as nature itself, has always recognized a

wide difference in the respective spheres and destinies of man and

woman. Man is, or should be, woman’s protector and defender. The

natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.

The constitution of the family organization, which is founded in the

divine ordinance, as well as in the nature of things, indicates the

domestic sphere as that which properly belongs to the domain and

functions of womanhood.’’ 33 On the same premise, a statute restricting the franchise to men was sustained. 34

The greater number of cases have involved legislation aimed to

protect women from oppressive working conditions, as by prescrib-
1876 AMENDMENT 14—RIGHTS GUARANTEED

35Muller v. Oregon, 208 U.S. 412 (1908); Dominion Hotel v. Arizona, 249 U.S.

265 (1919). 36West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). 37 E.g., Radice v. New York, 264 U.S. 292 (1924) (prohibiting night work by

women in restaurants). A similar restriction set a maximum weight that women

could be required to lift. 38 Hoyt v. Florida, 368 U.S. 57, 62 (1961). 39 Cronin v. Adams, 192 U.S. 108 (1904). 40Goesaert v. Cleary, 335 U.S. 464 (1948). 41Thus, 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). 42See, 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).

ing maximum hours 35 or minimum wages 36 or by restricting some

of the things women could be required to do. 37 A 1961 decision

upheld a state law which required jury service of men but which

gave women the option of serving or not. ‘‘We cannot say that it

is constitutionally impermissible for a State acting in pursuit of the

general welfare, to conclude that a woman should be relieved from

the civic duty of jury service unless she herself determines that

such service is consistent with her own special responsibilities.’’ 38

Another type of protective legislation for women that was sustained

by the Court is that premised on protection of morals, as by forbidding the sale of liquor to women. 39 In a highly controversial ruling,

the Court sustained a state law which forbade the licensing of any

female bartender, except for the wives or daughters of male owners. The Court purported to view the law as one for the protection

of the health and morals of women generally, with the exception

being justified by the consideration that such women would be

under the eyes of a protective male. 40

A wide variety of sex discriminations by governmental and private parties, including the protective labor legislation previously

sustained, is now subjected to federal statutory proscription, banning, for instance, sex discrimination in employment and requiring

equal pay for equal work. 41 Some states have followed suit. 42
AMENDMENT 14—RIGHTS GUARANTEED 1877

43On the Equal Rights Amendment, see supra, pp. 904–06, 913. 44 404 U.S. 71 (1971). 45 Id.at 75–77. Cf. Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972). A statute

similar to that in Reed was before the Court in Kirchberg v. Feenstra, 450 U.S. 455

(1981) (invalidating statute giving husband unilateral right to dispose of jointly

owned community property without wife’s consent). 46 Craig v. Boren, 429 U.S. 190, 197 (1976); Califano v. Goldfarb, 430 U.S. 199,

210–11 (1977) (plurality opinion); Califano v. Webster, 430 U.S. 313, 316–317

(1977); Orr v. Orr, 440 U.S. 268, 279 (1979); Caban v. Mohammed, 441 U.S. 380,

388 (1979); Massachusetts Personnel Adm’r v. Feeney, 442 U.S. 256, 273 (1979);

Califano v. Westcott, 443 U.S. 76, 85 (1979); Wengler v. Druggists Mutual Ins. Co.,

446 U.S. 142, 150 (1980); Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723–24 (1982). But see Michael

M. v. Superior Court, 450 U.S. 464, 468–69 (1981) (plurality opinion); id. at 483

(Justice Blackmun concurring); Rostker v. Goldberg, 453 U.S. 57, 69–72 (1981). The

test is the same whether women or men are disadvantaged by the classification, Orr

v. Orr, supra, at 279; Caban v. Mohammed, supra, at 394; Mississippi Univ. for

Women v. Hogan, supra at 724, although Justice Rehnquist and Chief Justice Burger strongly argued that when males are disadvantaged only the rational basis test

While the proposed Equal Rights Amendment pended before the

States and ultimately failed of ratification, 43 the Supreme Court

undertook a major evaluation of sex classification doctrine, first applying a ‘‘heightened’’ traditional standard of review (with bite) to

void a discrimination and then, after coming within a vote of making sex a suspect classification, settling upon an intermediate

standard. These standards continue, with some uncertainties of application and some tendencies among the Justices both to lessen

and to increase the burden of governmental justification, to provide

the analysis for evaluation of sex classifications.

In Reed v. Reed, 44 the Court held invalid a state probate law

which gave males preference over females when both were equally

entitled to administer an estate. Because the statute ‘‘provides that

different treatment be accorded to the applicants on the basis of

their sex,’’ Chief Justice Burger wrote, ‘‘it thus establishes a classification subject to scrutiny under the Equal Protection Clause.’’ The

Court proceeded to hold that under traditional equal protection

standards—requiring a classification to be reasonable and not arbitrarily related to a lawful objective—the classification made was an

arbitrary way to achieve the objective the State advanced in defense of the law, that is, to reduce the area of controversy between

otherwise equally qualified applicants for administration. Thus, the

Court used traditional analysis but the holding seems to go somewhat further to say that not all lawful interests of a State may be

advanced by a classification based solely on sex. 45

It is now established that sex classifications, in order to withstand equal protection scrutiny, ‘‘must serve important governmental objectives and must be substantially related to achievement

of those objectives.’’ 46 Thus, after several years in which sex dis-
1878 AMENDMENT 14—RIGHTS GUARANTEED

is appropriate. Craig v. Boren, supra, 217, 218–21; Califano v. Goldfarb, supra, at

224. That adoption of a standard has not eliminated difficulty in deciding such cases

should be evident by perusal of the cases following. 47 In Frontiero v. Richardson, 411 U.S. 677 (1973), four Justices were prepared

to hold that sex classifications are inherently suspect and must therefore be subjected to strict scrutiny. Id.at 684–87 (Justices Brennan, Douglas, White, and Marshall). Three Justices, reaching the same result, thought the statute failed the traditional test and declined for the moment to consider whether sex was a suspect classification, finding that inappropriate while the Equal Rights Amendment was pending. Id. at 691 (Justices Powell and Blackmun and Chief Justice Burger). Justice

Stewart found the statute void under traditional scrutiny and Justice Rehnquist dissented. Id. at 691. In Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 n.9

(1982), Justice O’Connor for the Court expressly reserved decision whether a classification that survived intermediate scrutiny would be subject to strict scrutiny. 48While their concurrences in Craig v. Boren, 429 U.S. 190, 210, 211 (1976), indicate some reticence about express reliance on intermediate scrutiny, Justices Powell and Stevens have since joined or written opinions stating the test and applying

it. E.g., Caban v. Mohammed, 441 U.S. 380, 388 (1979) (Justice Powell writing the

opinion of the Court); Parham v. Hughes, 441 U.S. 347, 359 (1979) (Justice Powell

concurring); Califano v. Goldfarb, 430 U.S. 199, 217 (1977) (Justice Stevens concurring); Caban v. Mohammed, supra, at 401 (Justice Stevens dissenting). Chief Justice

Burger and Justice Rehnquist have not clearly stated a test, although their deference to legislative judgment approaches the traditional scrutiny test. But see

Califano v. Westcott, supra, at 93 (joining Court on substantive decision). And cf.

Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 734–35 (1982) (Justice

Blackmun dissenting). 49The test is thus the same as is applied to illegitimacy classifications, although

with apparently more rigor when sex is involved. 50Stanton 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

tinctions were more often voided than sustained without a clear

statement of the standard of review, 47 a majority of the Court has

arrived at the intermediate standard which many had thought it

was applying in any event. 48 The Court first examines the statutory or administrative scheme to determine if the purpose or objective is permissible and, if it is, whether it is important. Then, having ascertained the actual motivation of the classification, the

Court engages in a balancing test to determine how well the classification serves the end and whether a less discriminatory one

would serve that end without substantial loss to the government. 49

Some sex distinctions were seen to be based solely upon ‘‘old

notions,’’ no longer valid if ever they were, about the respective

roles of the sexes in society, and those distinctions failed to survive

even traditional scrutiny. Thus, a state law defining the age of majority as 18 for females and 21 for males, entitling the male child

to support by his divorced father for three years longer than the

female child, was deemed merely irrational, grounded as it was in

the assumption of the male as the breadwinner, needing longer to

prepare, and the female as suited for wife and mother. 50 Similarly,
AMENDMENT 14—RIGHTS GUARANTEED 1879

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). 51Taylor 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. 52 Craig v. Boren, 429 U.S. 190 (1976). 53 Id.at 198, 199–200, 201–04. 54Orr v. Orr, 440 U.S. 268 (1979).

a state jury system that in effect excluded almost all women was

deemed to be based upon an overbroad generalization about the

role of women as a class in society, and the administrative convenience served could not justify it. 51

Assumptions about the relative positions of the sexes, however,

are not without some basis in fact, and sex may sometimes be a

reliable proxy for the characteristic, such as need, with which it is

the legislature’s actual intention to deal. But heightened scrutiny

requires evidence of the existence of the distinguishing fact and its

close correspondence with the condition for which sex stands as

proxy. Thus, in the case which first expressly announced the intermediate scrutiny standard, the Court struck down a state statute

that prohibited the sale of ‘‘non-intoxicating’’ 3.2 beer to males

under 21 and to females under 18. 52 Accepting the argument that

traffic safety was an important governmental objective, the Court

emphasized that sex is an often inaccurate proxy for other, more

germane classifications. Taking the statistics offered by the State

as of value, while cautioning that statistical analysis is a ‘‘dubious’’

business that is in tension with the ‘‘normative philosophy that

underlies the Equal Protection Clause,’’ the Court thought the correlation between males and females arrested for drunk driving

showed an unduly tenuous fit to allow the use of sex as a distinction. 53

Invalidating an Alabama law imposing alimony obligations

upon males but not upon females, the Court acknowledged that assisting needy spouses was a legitimate and important governmental objective and would then have turned to ascertaining

whether sex was a sufficiently accurate proxy for dependency, so it

could be said that the classification was substantially related to

achievement of the objective. 54 However, the Court observed that

the State already conducted individualized hearings with respect to

the need of the wife, so that with little additional burden needy

males could be identified and helped. The use of the sex standard
1880 AMENDMENT 14—RIGHTS GUARANTEED

55 Id. at 280–83. An administrative convenience justification was not available,

therefore. Id. at 281 & n.12. While such an argument has been accepted as a sufficient justification in at least some illegitimacy cases, Mathews v. Lucas, 427 U.S.

495, 509 (1976), it has neither wholly been ruled out nor accepted in sex cases. In

Lucas, supra, 509–10, the Court interpreted Frontiero v. Richardson, 411 U.S. 677

(1973), as having required a showing at least that for every dollar lost to a recipient

not meeting the general purpose qualification a dollar is saved in administrative expense. In Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 152 (1980), the Court

said that ‘‘[i]t may be that there are levels of administrative convenience that will

justify discriminations that are subject to heightened scrutiny . . . , but the requisite showing has not been made here by the mere claim that it would be inconvenient to individualize determinations about widows as well as widowers.’’ Justice Stevens apparently would demand a factual showing of substantial savings. Califano

v. Goldfarb, 430 U.S. 199, 219 (1977) (concurring).

56 Caban v. Mohammed, 441 U.S. 380 (1979). Four Justices dissented. Id. at 394

(Justice Stewart), 401 (Justices Stevens and Rehnquist and Chief Justice Burger).

For the conceptually different problem of classification between different groups of

women on the basis of marriage or absence of marriage to a wage earner, see

Califano v. Boles, 443 U.S. 282 (1979).

57Parham v. Hughes, 441 U.S. 347 (1979). Justices White, Brennan, Marshall,

and Blackmun, who had been in the majority in Caban, dissented. Id. at 361.

as a proxy, therefore, was not justified because it needlessly burdened needy men and advantaged financially secure women whose

husbands were in need. 55

Discrimination between unwed mothers and unwed fathers received different treatments through the Court’s perception of the

justifications and presumptions underlying each. A New York law

permitted the unwed mother but not the unwed father of an illegitimate child to block his adoption by withholding consent. Acting in

the instance of one who acknowledged his parenthood and who had

maintained a close relationship with his child over the years, the

Court could discern no substantial relationship between the classification and some important state interest. Promotion of adoption

of illegitimates and their consequent legitimation was important,

but the assumption that all unwed fathers either stood in a different relationship to their children than did the unwed mother or

that the difficulty of finding the fathers would unreasonably burden the adoption process was overbroad, as the facts of the case revealed. No barrier existed to the State dispensing with consent

when the father or his location is unknown, but disqualification of

all unwed fathers may not be used as a shorthand for that step. 56

On the other hand, the Court sustained a Georgia statute which

permitted the mother of an illegitimate child to sue for the wrongful death of the child but which allowed the father to sue only if

he had legitimated the child and there is no mother. 57 There was

no opinion of the Court, but both opinions making up the result

emphasized that the objective of the State, the avoidance of dif-
AMENDMENT 14—RIGHTS GUARANTEED 1881

58The 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. 59Frontiero v. Richardson, 411 U.S. 677 (1973). 60 420 U.S. 636 (1975). 61 430 U.S. 199 (1977). The dissent argued that whatever the classification utilized, social insurance programs should not automatically be subjected to heightened

scrutiny but rather only to traditional rationality review. Id. at 224 (Justice

Rehnquist with Chief Justice Burger and Justices Stewart and Blackmun). In

Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142 (1980), voiding a state workers’

compensation provision identical to that voided in Goldfarb, only Justice Rehnquist

continued to adhere to this view, although the others may have yielded only to

precedent.

ficulties in proving paternity, was an important one which was advanced by the classification. 58

As in the instance of illegitimacy classifications, the issue of

sex qualifications for the receipt of governmental financial benefits

has divided the Court and occasioned close distinctions. A statutory

scheme under which a serviceman could claim his spouse as a ‘‘dependent’’ for allowances while a servicewoman’s spouse was not

considered a ‘‘dependent’’ unless he was shown in fact to be dependent upon her for more than one half of his support was held

an invalid dissimilar treatment of similarly situated men and

women, not justified by the administrative convenience rationale. 59

In Weinberger v. Wiesenfeld, 60 the Court struck down a Social Security provision that gave survivor’s benefits based on the insured’s

earnings to the widow and minor children but gave such benefits

only to the children and not to the widower of a deceased woman

worker. Focusing not only upon the discrimination against the widower but primarily upon the discrimination visited upon the

woman worker whose earnings did not provide the same support

for her family that a male worker’s did, the Court saw the basis

for the distinction resting upon the generalization that a woman

would stay home and take care of the children while a man would

not. Since the Court perceived the purpose of the provision to be

to enable the surviving parent to choose to remain at home to care

for minor children, the sex classification ill fitted the end and was

invidiously discriminatory.

But when in Califano v. Goldfarb 61 the Court was confronted

with a Social Security provision structured much as the benefit sections struck down in Frontiero and Wiesenfeld, even in the light of

an express heightened scrutiny, no majority of the Court could be
1882 AMENDMENT 14—RIGHTS GUARANTEED

62 Id. at 430 U.S. 204–09, 212–17 (Justices Brennan, White, Marshall, and Powell). Congress responded by eliminating the dependency requirement but by adding

a pension offset provision reducing spousal benefits by the amount of various other

pensions received. Continuation in this context of the Goldfarb gender-based dependency classification for a five-year ‘‘grace period’’ was upheld in Heckler v.

Mathews, 465 U.S. 728 (1984), as directly and substantially related to the important

governmental interest in protecting against the effects of the pension offset the retirement plans of individuals who had based their plans on unreduced pre-Goldfarb

payment levels. 63 Id. at 217. Justice Stevens adhered to this view in Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 154 (1980). Note the unanimity of the Court on the substantive issue, although it was divided on remedy, in voiding in Califano v. Westcott, 443 U.S. 76 (1979), a Social Security provision giving benefits to families with

dependent children who have been deprived of parental support because of the unemployment of the father but giving no benefits when the mother is unemployed. 64 453 U.S. 57 (1981). Joining the opinion of the Court were Justices Rehnquist,

Stewart, Blackmun, Powell, and Stevens, and Chief Justice Burger. Dissenting were

Justices White, Marshall, and Brennan. Id. at 83, 86.

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. 62 Justice Stevens, concurring, accepted most of the analysis of the dissent but nonetheless

came to the conclusion of invalidity. His argument was essentially

that while either administrative convenience or a desire to remedy

discrimination against female spouses could justify use of a sex

classification, neither purpose was served by the sex classification

actually used in this statute. 63

Again, the Court divided closely when it sustained two instances of classifications claimed to constitute sex discrimination.

In Rostker v. Goldberg, 64 rejecting presidential recommendations,

Congress provided for registration only of males for a possible future military draft, excluding women altogether. The Court discussed but did not explicitly choose among proffered equal protection standards, but it apparently applied the intermediate test of

Craig v. Boren. However, it did so in the context of its often-stated
AMENDMENT 14—RIGHTS GUARANTEED 1883

65 Id. at 69–72, 78–83. The dissent argued that registered persons would fill

noncombat positions as well as combat ones and that drafting women would add to

women volunteers providing support for combat personnel and would free up men

in other positions for combat duty. Both dissents assumed without deciding that exclusion of women from combat served important governmental interests. Id. at 83,

93. The majority’s reliance on an administrative convenience argument, it should be

noted, id., 81, was contrary to recent precedent. Supra, p. 1880 n.55. 66 450 U.S. 464 (1981). Joining the opinion of the Court were Justices

Rehnquist, Stewart, and Powell, and Chief Justice Burger, constituting only a plurality. Justice Blackmun concurred in a somewhat more limited opinion. Id. at 481.

Dissenting were Justices Brennan, White, Marshall, and Stevens. Id. at 488, 496. 67 Id. at 470–74, 481. The dissents questioned both whether the pregnancy deterrence rationale was the purpose underlying the distinction and whether, if it was,

the classification was substantially related to achievement of the goal. Id. at 488,

496.

preference for extreme deference to military decisions and to congressional resolution of military decisions. Evaluating the congressional determination, the Court found that it has not been ‘‘unthinking’’ or ‘‘reflexively’’ based upon traditional notions of the differences between men and women; rather, Congress had extensively deliberated over its decision. It had found, the Court asserted, that the purpose of registration was the creation of a pool

from which to draw combat troops when needed, an important and

indeed compelling governmental interest, and the exclusion of

women was not only ‘‘sufficiently but closely’’ related to that purpose because they were ill-suited for combat, could be excluded

from combat, and registering them would be too burdensome to the

military system. 65

In Michael M. v. Superior Court, 66 the Court did expressly

adopt the Craig v. Boren intermediate standard, but its application

of the test appeared to represent a departure in several respects

from prior cases in which it had struck down sex classifications.

Michael M. involved the constitutionality of a statute that punished

males, but not females, for having sexual intercourse with a

nonspousal person under 18 years of age. The plurality and the

concurrence generally agreed, but with some difference of emphasis, that while the law was founded on a clear sex distinction it was

justified because it did serve an important governmental interest,

the prevention of teenage pregnancies. Inasmuch as women may

become pregnant and men may not, women would be better deterred by that biological fact, and men needed the additional legal

deterrence of a criminal penalty. Thus, the law recognized that for

purposes of this classification men and women were not similarly

situated, and the statute did not deny equal protection. 67

Cases of ‘‘benign’’ discrimination, that is, statutory classifications that benefit women and disadvantage men in order to overcome the effects of past societal discrimination against women,
1884 AMENDMENT 14—RIGHTS GUARANTEED

68 416 U.S. 351 (1974).

69 Id. at 355.

70 419 U.S. 498 (1975).

71Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1975); Califano v. Goldfarb, 430

U.S. 199, 209 n.8 (1977); Orr v. Orr, 440 U.S. 268, 280–82 (1979); Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150–52 (1980). In light of the stiffened standard, Justice Stevens has called for overruling Kahn, Califano v. Goldfarb, supra,

223–24, but Justice Blackmun would preserve that case. Orr v. Orr, supra, at 284.

Cf. Regents of the Univ. of California v. Bakke, 438 U.S. 265, 302–03 (1978) (Justice

Powell; less stringent standard of review for benign sex classifications).

have presented the Court with some difficulty. Although the first

two cases were reviewed under apparently traditional rational

basis scrutiny, the more recent cases appear to subject these classifications to the same intermediate standard as any other sex classification. Kahn v. Shevin 68 upheld a state property tax exemption

allowing widows but not widowers a $500 exemption. In justification, the State had presented extensive statistical data showing the

substantial economic and employment disabilities of women in relation to men. The provision, the Court found, was ‘‘reasonably designed to further the state policy of cushioning the financial impact

of spousal loss upon the sex for whom that loss imposes a disproportionately heavy burden.’’ 69 And in Schlesinger v. Ballard, 70

the Court sustained a provision requiring the mandatory discharge

from the Navy of a male officer who has twice failed of promotion

to certain levels, which in Ballard’s case meant discharge after nine

years of service, whereas women officers were entitled to 13 years

of service before mandatory discharge for want of promotion. The

difference was held to be a rational recognition of the fact that

male and female officers were dissimilarly situated and that

women had far fewer promotional opportunities than men had.

Although in each of these cases the Court accepted the proffered justification of remedial purpose without searching inquiry,

later cases caution that ‘‘the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against

any inquiry into the actual purposes underlying a statutory

scheme.’’ 71 Rather, after specifically citing the heightened scrutiny

that all sex classifications are subjected to, the Court looks to the

statute and to its legislative history to ascertain that the scheme

does not actually penalize women, that it was actually enacted to

compensate for past discrimination, and that it does not reflect

merely ‘‘archaic and overbroad generalizations’’ about women in its

moving force. But where a statute is ‘‘deliberately enacted to compensate for particular economic disabilities suffered by women,’’ it
AMENDMENT 14—RIGHTS GUARANTEED 1885

72 Califano v. Webster, 430 U.S. 313, 316–18, 320 (1977). There was no doubt

that the provision sustained in Webster had been adopted expressly to relieve past

societal discrimination. The four Goldfarb dissenters concurred specially, finding no

difference between the two provisions. Id. at 321. 73 458 U.S. 718 (1982). Joining the opinion of the Court were Justices O’Connor,

Brennan, White, Marshall, and Stevens. Dissenting were Chief Justice Burger and

Justices Blackmun, Powell, and Rehnquist. Id. at 733, 735. 74 Id. at 728. 75 Id. at 730. In addition to obligating the State to show that in fact there was

existing discrimination or effects from past discrimination, the Court also appeared

to take the substantial step of requiring the State ‘‘to establish that the legislature

intended the single-sex policy to compensate for any perceived discrimination.’’ Id.

at 730 n.16. A requirement that the proffered purpose be the actual one and that

it must be shown that the legislature actually had that purpose in mind would be

a notable stiffening of equal protection standards. 76 In the major dissent, Justice Powell argued that only a rational basis standard ought to be applied to sex classifications that would ‘‘expand women’s choices,’’

but that the exclusion here satisfied intermediate review because it promoted diversity of educational opportunity and was premised on the belief that single-sex colserves an important governmental objective and will be sustained

if it is substantially related to achievement of that objective. 72

Many of these lines of cases converged in Mississippi University for Women v. Hogan, 73 in which the Court stiffened and applied its standards for evaluating claimed benign distinctions benefiting women and additionally appeared to apply the intermediate

standard itself more strictly. The case involved a male nurse who

wished to attend a female-only nursing school located in the city

in which he lived and worked; if he could not attend this particular

school he would have had to commute 147 miles to another nursing

school which did accept men, and he would have had difficulty

doing so and retaining his job. The State defended on the basis

that the female-only policy was justified as providing ‘‘educational

affirmative action for females.’’ Recitation of a benign purpose, the

Court said, was not alone sufficient. ‘‘[A] State can evoke a compensatory purpose to justify an otherwise discriminatory classification

only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification.’’ 74 But

women did not lack opportunities to obtain training in nursing; instead they dominated the field. In the Court’s view, the state policy

did not compensate for discriminatory barriers facing women, but

it perpetuated the stereotype of nursing as a woman’s job.

‘‘[A]lthough the State recited a ‘benign, compensatory purpose,’ it

failed to establish that the alleged objective is the actual purpose

underlying the discriminatory classification.’’ 75 Even if the classification was premised on the proffered basis, the Court concluded,

it did not substantially and directly relate to the objective, because

the school permitted men to audit the nursing classes and women

could still be adversely affected by the presence of men. 76
1886 AMENDMENT 14—RIGHTS GUARANTEED

leges 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).77 414 U.S. 632 (1974). Justice Powell concurred on equal protection grounds. Id.

at 651. See also Turner v. Department of Employment Security, 423 U.S. 44 (1975). 78Geduldig v. Aiello, 417 U.S. 484 (1974). The Court denied that the classification was based upon ‘‘gender as such.’’ Classification was on the basis of pregnancy,

and while only women can become pregnant, that fact alone was not determinative.

‘‘The program divides potential recipients into two groups—pregnant woman and

nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes.’’ Id. at 496 n.20. For a rejection of a similar attempted distinction, see Nyquist v. Mauclet, 432 U.S. 1, 9 (1977); and Trimble v.

Gordon, 430 U.S. 762, 774 (1977). See also Phillips v. Martin-Marietta Corp., 400

U.S. 542 (1971). For the transmutation of Geduldig into statutory interpretation

and Congress’ response, see supra, p. 1876 n.41. 79The 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.,

Another area presenting some difficulty is that of the relationship of pregnancy classifications to gender discrimination. In Cleveland Board of Education v. LaFluer, 77 a case decided upon due

process grounds, two school systems requiring pregnant school

teachers to leave work four and five months respectively before the

expected childbirths were found to have acted arbitrarily and irrationally in establishing rules not supported by anything more

weighty than administrative convenience buttressed with some possible embarrassment of the school boards in the face of pregnancy.

On the other hand, the exclusion of pregnancy from a state financed program of payments to persons disabled from employment

was upheld against equal protection attack as supportable by legitimate state interests in the maintenance of a self-sustaining program with rates low enough to permit the participation of low-income workers at affordable levels. 78 The absence of supportable

reasons in one case and their presence in the other may well have

made the significant difference.

Illegitimacy.—After wrestling in a number of cases with the

question of the permissibility of governmental classifications

disadvantaging illegitimates and the standard for determining

which classifications are sustainable, the Court arrived at a standard difficult to state and even more difficult to apply. 79 Although
AMENDMENT 14—RIGHTS GUARANTEED 1887

406 U.S. 164 (1972), involving a workmen’s compensation statute distinguishing between legitimates and illegitimates, in which scrutiny was intermediate. 80Mathews v. Lucas, 427 U.S. 495, 503–06 (1976); Trimble v. Gordon, 430 U.S.

762, 766–67 (1977); Lalli v. Lalli, 439 U.S. 259, 265 (1978). Scrutiny in previous

cases had ranged from negligible, Labine v. Vincent, 401 U.S. 532 (1971), to something approaching strictness, Jiminez v. Weinberger, 417 U.S. 628, 631–632 (1974).

Mathews itself illustrates the uncertainty of statement, suggesting at one point that

the Labine standard may be appropriate, supra, at 506, and at another that the

standard appropriate to sex classifications is to be used, id. at 510, while observing

a few pages earlier that illegitimacy is entitled to less exacting scrutiny than either

race or sex. Id. at 506. Trimble settles on intermediate scrutiny but does not assess

the relationship between its standard and the sex classification standard. See

Parham v. Hughes, 441 U.S. 347 (1979), and Caban v. Mohammed, 441 U.S. 380

(1979) (both cases involving classifications reflecting both sex and illegitimacy interests).81The major inconsistency arises from three 5-to–4 decisions. Labine v. Vincent,

401 U.S. 532 (1971), was largely overruled by Trimble v. Gordon, 430 U.S. 762

(1977), which itself was substantially limited by Lalli v. Lalli, 439 U.S. 259 (1978).

Justice Powell was the swing vote for different disposition of the latter two cases.

Thus, while four Justices argued for stricter scrutiny and usually invalidation of

such classifications, Lalli v. Lalli, supra, at 277 (Justices Brennan, White, Marshall,

and Stevens dissenting), and four favor relaxed scrutiny and usually sustaining the

classifications, Trimble v. Gordon, supra, 776, 777 (Chief Justice Burger and Justices Stewart, Blackmun, and Rehnquist dissenting), Justice Powell applied his own

intermediate scrutiny and selectively voided and sustained. See Lalli v. Lalli, supra,

(plurality opinion by Justice Powell). 82 A classification that absolutely distinguishes between legitimates and

illegitimates is not alone subject to such review; one that distinguishes among classes of illegitimates is also subject to it, Trimble v. Gordon, 430 U.S. 762, 774 (1977),

as indeed are classifications based on other factors. E.g., Nyquist v. Mauclet, 432

U.S. 1, 9 (1977) (alienage).

‘‘illegitimacy is analogous in many respects to the personal characteristics that have been held to be suspect when used as the basis

of statutory differentiations,’’ the analogy is ‘‘not sufficient to require ‘our most exacting scrutiny.’’’ The scrutiny to which it is entitled is intermediate, ‘‘not a toothless [scrutiny],’’ but somewhere between that accorded race and that accorded ordinary economic classifications. Basically, the standard requires a determination of a legitimate legislative aim and a careful review of how well the classification serves, or ‘‘fits,’’ the aim. 80 The common rationale of all the

illegitimacy cases is not clear, is in many respects not wholly consistent, 81 but the theme that seems to be imposed on them by the

more recent cases is that so long as the challenged statute does not

so structure its conferral of rights, benefits, or detriments that

some illegitimates who would otherwise qualify in terms of the

statute’s legitimate purposes are disabled from participation, the

imposition of greater burdens upon illegitimates or some classes of

illegitimates than upon legitimates is permissible. 82

Intestate succession rights for illegitimates has divided the

Court over the entire period. At first adverting to the broad power

of the States over descent of real property, the Court employed re-
1888 AMENDMENT 14—RIGHTS GUARANTEED

83Labine v. Vincent, 401 U.S. 532 (1971). Weber v. Aetna Casualty & Surety

Co., 406 U.S. 164, 170 (1972), had confined the analysis of Labine to the area of

state inheritance laws in expanding review of illegitimacy classifications. 84 430 U.S. 762 (1977). Chief Justice Burger and Justices Stewart, Blackmun,

and Rehnquist dissented, finding the statute ‘‘constitutionally indistinguishable’’

from the one sustained in Labine. Id. at 776. Justice Rehnquist also dissented separately. Id. at 777. 85 Id. at 768–70. While this purpose had been alluded to in Labine v. Vincent,

401 U.S. 532, 538 (1971), it was rejected as a justification in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173, 175 (1972). Visiting consequences upon the

parent appears to be permissible. Parham v. Hughes, 441 U.S. 347, 352–53 (1979). 86Trimble v. Gordon, 430 U.S. 762, 774–76 (1977). The Court cited the failure

of the state court to rely on this purpose and its own examination of the statute. 87 Id. at 773–74. This justification had been prominent in Labine v. Vincent, 401

U.S. 532, 539 (1971), and its absence had been deemed critical in Weber v. Aetna

Casualty & Surety Co., 406 U.S. 164, 170–71 (1972). The Trimble Court thought

this approach ‘‘somewhat of an analytical anomaly’’ and disapproved it. However,

the degree to which one could conform to the statute’s requirements and the reasonableness of those requirements in relation to a legitimate purpose are prominent in

Justice Powell’s reasoning in subsequent cases. Lalli v. Lalli, 439 U.S. 259, 266–74

(1978); Parham v. Hughes, 441 U.S. 347, 359 (1979) (concurring). See also Nyquist

v. Mauclet, 432 U.S. 1 (1977) (alienage); Mississippi Univ. for Women v. Hogan, 458

U.S. 718, 723 n.8 (1982) (sex); and compare id. at 736 (Justice Powell dissenting).

laxed scrutiny to sustain a law denying illegitimates the right to

share equally with legitimates in the estate of their common father,

who had acknowledged the illegitimates but who had died intestate. 83 Labine was strongly disapproved, however, and virtually

overruled in Trimble v. Gordon, 84 which found an equal protection

violation in a statute allowing illegitimate children to inherit by intestate succession from their mothers but from their fathers only

if the father had ‘‘acknowledged’’ the child and the child had been

legitimated by the marriage of the parents. The father in Trimble

had not acknowledged his child, and had not married the mother,

but a court had determined that he was in fact the father and had

ordered that he pay child support. Carefully assessing the purposes

asserted to be the basis of the statutory scheme, the Court found

all but one to be impermissible or inapplicable and that one not

served closely enough by the restriction. First, it was impermissible

to attempt to influence the conduct of adults not to engage in illicit

sexual activities by visiting the consequences upon the offspring. 85

Second, the assertion that the statute mirrored the assumed intent

of decedents, in that, knowing of the statute’s operation, they

would have acted to counteract it through a will or otherwise, was

rejected as unproved and unlikely. 86 Third, the argument that the

law presented no insurmountable barrier to illegitimates inheriting

since a decedent could have left a will, married the mother, or

taken steps to legitimate the child, was rejected as inapposite. 87

Fourth, the statute did address a substantial problem, a permissible state interest, presented by the difficulties of proving pater-
AMENDMENT 14—RIGHTS GUARANTEED 1889

88Trimble 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). 89 439 U.S. 259 (1978). The four Trimble dissenters joined Justice Powell in the

result, although only two joined his opinion. Justices Blackmun and Rehnquist concurred because they thought Trimble wrongly decided and ripe for overruling. Id.

at 276. The four dissenters, who had joined the Trimble majority with Justice Powell, thought the two cases were indistinguishable. Id. at 277.

nity and avoiding spurious claims. However, the court thought the

means adopted, total exclusion, did not approach the ‘‘fit’’ necessary

between means and ends to survive the scrutiny appropriate to this

classification. The state court was criticized for failing ‘‘to consider

the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity. For at

least some significant categories of illegitimate children of intestate

men, inheritance rights can be recognized without jeopardizing the

orderly settlement of estates or the dependability of titles to property passing under intestacy laws.’’ 88 Because the state law did not

follow a reasonable middle ground, it was invalidated.

A reasonable middle ground was discerned, at least by Justice

Powell, in Lalli v. Lalli, 89 concerning a statute which permitted legitimate children to inherit automatically from both their parents,

while illegitmates could inherit automatically only from their mothers, and could inherit from their intestate fathers only if a court

of competent jurisdiction had, during the father’s lifetime, entered

an order declaring paternity. The child tendered evidence of paternity, including a notarized document in which the putative father,

in consenting to his marriage, referred to him as ‘‘my son’’ and several affidavits by persons who stated that the elder Lalli had openly and frequently acknowledged that the younger Lalli was his

child. In the prevailing view, the single requirement of entry of a

court order during the father’s lifetime declaring the child as his

met the ‘‘middle ground’’ requirement of Trimble; it was addressed

closely and precisely to the substantial state interest of seeing to

the orderly disposition of property at death by establishing proof of

paternity of illegitimate children and avoiding spurious claims

against intestate estates. To be sure, some illegitimates who were

unquestionably established as children of the decreased would be

disqualified because of failure of compliance, but individual fairness is not the test. The test rather is whether the requirement is

closely enough related to the interests served to meet the standard
1890 AMENDMENT 14—RIGHTS GUARANTEED

90 Illustrating the difficulty are two cases in which the fathers of illegitimate

children challenged statutes treating them differently than mothers of such children

were treated. In Parham v. Hughes, 441 U.S. 347 (1979), the majority viewed the

distinction as a gender-based one rather than as an illegitimacy classification and

sustained a bar to a wrongful death action by the father of an illegitimate child who

had not legitimated him; in Caban v. Mohammed, 441 U.S. 380 (1980), again viewing the distinction as a gender-based one, the majority voided a state law permitting

the mother but not the father of an illegitimate child to block his adoption by refusing to consent. Both decisions were 5-to–4. 91Gomez 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.

of rationality imposed. Also, no doubt the State’s interest could

have been served by permitting other kinds of proof, but that too

is not the test of the statute’s validity. Hence, the balancing necessitated by the Court’s promulgation of standards in such cases

caused it to come to different results on closely related fact patterns, making predictability quite difficult but perhaps manageable. 90

The Court’s difficulty in arriving at predictable results has extended outside the area of descent of property. Thus, a Texas child

support law affording legitimate children a right to judicial action

to obtain support from their fathers while not affording the right

to illegitimate children denied the latter equal protection. ‘‘A State

may not invidiously discriminate against illegitimate children by

denying them substantial benefits accorded children generally. We

therefore hold that once a State posits a judicially enforceable right

on behalf of children to needed support from their natural fathers

there is no constitutionally sufficient justification for denying such

an essential right to a child simply because its natural father has

not married its mother.’’ 91

Similarly, a federal Social Security provision was held invalid

which made eligible for benefits, because of an insured parent’s dis-
AMENDMENT 14—RIGHTS GUARANTEED 1891

92 Jiminez v. Weinberger, 417 U.S. 628 (1974). But cf. Califano v. Boles, 443

U.S. 282 (1979). See also New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619

(1973) (limiting welfare assistance to households in which parents are ceremonially

married and the children are legitimate or adopted denied illegitimate children

equal protection); Richardson v. Davis, 409 U.S. 1069 (1972), aff’g 342 F. Supp. 588

(D. Conn.) (3-judge court), and Richardson v. Griffin, 409 U.S. 1069 (1972), aff’g 346

F. Supp. 1226 (D. Md.) (3-judge court) (Social Security provision entitling illegitimate children to monthly benefit payments only to extent that payments to widow

and legitimate children do not exhaust benefits allowed by law denies illegitimates

equal protection). 93Mathews 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).

ability, all legitimate children as well as those illegitimate children

capable of inheriting personal property under state intestacy law

and those children who were illegitimate only because of a

nonobvious defect in their parents’ marriage, regardless of whether

they were born after the onset of the disability, but which made all

other illegitimate children eligible only if they were born prior to

the onset of disability and if they were dependent upon the parent

prior to the onset of disability. The Court deemed the purpose of

the benefits to be to aid all children and rejected the argument that

the burden on illigitimates was necessary to avoid fraud. 92

However, in a second case, an almost identical program, providing benefits to children of a deceased insured, was sustained because its purpose was found to be to give benefits to children who

were dependent upon the deceased parent and the classifications

served that purpose. Presumed dependent were all legitimate children as well as those illegitimate children who were able to inherit

under state intestacy laws, who were illegitimate only because of

the technical invalidity of the parent’s marriage, who had been acknowledged in writing by the father, who had been declared to be

the father’s by a court decision, or who had been held entitled to

the father’s support by a court. Illegitimate children not covered by

these presumptions had to establish that they were living with the

insured parent or were being supported by him when the parent

died. According to the Court, all the presumptions constituted an

administrative convenience which was a permissible device because

those illegitimate children who were entitled to benefits because

they were in fact dependent would receive benefits upon proof of

the fact and it was irrelevant that other children not dependent in

fact also received benefits. 93
1892 AMENDMENT 14—RIGHTS GUARANTEED

94Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50–51 (1959). 95 Article I, § 2, cl. 1 (House of Representatives); Seventeenth Amendment (Senators); Article II, § 1, cl. 2 (presidential electors). See Article I, § 4, cl. 1 and discussion supra, pp. 118–21. 96Fourteenth 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, supra 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. 97Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51 (1959). 98 Reynolds v. Sims, 377 U.S. 533, 561–62 (1964).

Fundamental Interests: The Political Process

‘‘The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised. . . , absent of course the discrimination which the Constitution condemns.’’ 94 The Constitution provides that the qualifications

of electors in congressional elections are to be determined by reference to the qualifications prescribed in the States for the electors

of the most numerous branch of the legislature, and the States are

authorized to determine the manner in which presidential electors

are selected. 95 The second section of the Fourteenth Amendment

provides for a proportionate reduction in a State’s representation in

the House when it denies the franchise to its qualified male citizens 96 and specific discriminations on the basis of race, sex, and

age are addressed in other Amendments. ‘‘We do not suggest that

any standards which a State desires to adopt may be required of

voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record . . . are obvious

examples indicating factors which a State may take into consideration in determining the qualification of voters. The ability to read

and write likewise has some relation to standards designed to promote intelligent use of the ballot.’’ 97

The perspective of this 1959 opinion by Justice Douglas has

now been revolutionized. ‘‘Undoubtedly, the right of suffrage is a

fundamental matter in a free and democratic society. Especially

since the right to exercise the franchise in a free and unimpaired

manner is preservative of other basic civil and political rights, any

alleged infringement of the rights of citizens to vote must be carefully and meticulously scrutinized.’’ 98 ‘‘Any unjustified discrimination in determining who may participate in political affairs or in

the selection of public officials undermines the legitimacy of representative government. . . . Statutes granting the franchise to

residents on a selective basis always pose the danger of denying
AMENDMENT 14—RIGHTS GUARANTEED 1893

99Kramer 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). 100Thus, 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). 101Dunn 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).

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

‘rational basis’ for the distinctions made are not applicable.’’ 99

Using this analytical approach, the Court has established a regime

of close review of a vast range of state restrictions on the eligibility

to vote, on access to the ballot by candidates and parties, and on

the weighing of votes cast through the devices of apportionment

and districting. Changes in Court membership over the years has

led to some relaxation in the application of principles, but even as

the Court has drawn back in other areas it has tended to preserve,

both doctrinally and in fact, the election cases. 100

Voter Qualifications.—A State may require residency as a

qualification to vote but since durational residency requirements

impermissibly restrict the right to vote and penalize the assertion

of the constitutional right to travel they are invalid. 101 The Court

indicated that the States have a justified interest in preventing

fraud and in facilitating determination of the eligibility of potential
1894 AMENDMENT 14—RIGHTS GUARANTEED

102Marston v. Lewis, 410 U.S. 679 (1973). Registration was by volunteer workers who made statistically significant errors requiring corrections by county recorders before certification. Primary elections were held in the fall, thus occupying the

time of the recorders, so that a backlog of registrations had to be processed before

the election. A period of 50 days rather than 30, the Court thought, was justifiable.

However, the same period was upheld for another State on the authority of Marston

in the absence of such justification, but it appeared that plaintiffs had not controverted the State’s justifying evidence. Burns v. Fortson, 410 U.S. 686 (1973). Justices Brennan, Douglas, and Marshall dissented in both cases. Id. at 682, 688. 103 Evans v. Cornman, 398 U.S. 419 (1970). 104 Carrington v. Rash, 380 U.S. 89 (1965). 105 Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966). Justices Black, Harlan, and Stewart dissented. Id. at 670, 680. Poll tax qualifications had previously

been upheld in Breedlove v. Suttles, 302 U.S. 277 (1937); and Butler v. Thompson,

341 U.S. 937 (1951). 106Kramer 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.

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. 102

A State that exercised general criminal, taxing, and other jurisdiction over persons on certain federal enclaves within the State,

the Court held, could not treat these persons as nonresidents for

voting purposes. 103 A statute which provided that anyone who entered military service outside the State could not establish voting

residence in the State so long as he remained in the military was

held to deny to such a person the opportunity such as all non-military persons enjoyed of showing that he had established residence. 104 Restricting the suffrage to those persons who had paid a

poll tax was an invidious discrimination because it introduced a

‘‘capricious or irrelevant factor’’ of wealth or ability to pay into an

area in which it had no place. 105 Extending this ruling, the Court

held that the eligibility to vote in local school elections may not be

limited to persons owning property in the district or who have children in school, 106 and denied States the right to restrict the vote
AMENDMENT 14—RIGHTS GUARANTEED 1895

107 Cipriano v. City of Houma, 395 U.S. 701 (1969). Justices Black, Harlan, and

Stewart concurred specially. Id. at 707. 108 City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). Justice Stewart and

Chief Justice Burger dissented. Id. at 215. In Hill v. Stone, 421 U.S. 289 (1975),

the Court struck down a limitation on the right to vote on a general obligation bond

issue to persons who have ‘‘rendered’’ or listed real, mixed, or personal property for

taxation in the election district. It was not a ‘‘special interest’’ election since a general obligation bond issue is a matter of general interest. 109Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 719 (1973). See also

Associated Enterprises v. Toltec Watershed Improv. Dist., 410 U.S. 743 (1973) (limitation of franchise to property owners in the creation and maintenance of district

upheld). Justices Douglas, Brennan, and Marshall dissented in both cases. Id. at

735, 745. 110 410 U.S. at 727–28. 111 Id. at 730, 732. Thus, the Court posited reasons that might have moved the

legislature to adopt the exclusions. 112 451 U.S. 355 (1981). Joining the opinion of the Court were Justices Stewart,

Powell, Rehnquist, Stevens, and Chief Justice Burger. Dissenting were Justices

White, Brennan, Marshall, and Blackmun. Id. at 374.

to property owners in elections on the issuance of revenue bonds 107

or general obligation bonds. 108

However, the Court held that because the activities of a water

storage district fell so disproportionately on landowners as a group,

a limitation of the franchise in elections for the district’s board of

directors to landowners, whether resident or not and whether natural persons or not, excluding non-landowning residents and lessees

of land, and weighing the votes granted according to assessed valuation of land, comported with equal protection standards. 109

Adverting to the reservation in prior local governmental unit election cases 110 that some functions of such units might be so specialized as to permit deviation from the usual rules, the Court then

proceeded to assess the franchise restrictions according to the traditional standards of equal protection rather than by those of strict

scrutiny. 111 Also narrowly approached was the issue of the effect

of the District’s activities, the Court focusing upon the assessments

against landowners as the sole means of paying expenses rather

than additionally noting the impact upon lessees and 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, 112 in which the Court sustained a system in which

voting eligibility was limited to landowners and votes were allocated to these voters on the basis of the number of acres they

owned. The entity was a water reclamation district which stores

and delivers water to 236,000 acres of land in the State and subsidizes its water operations by selling electricity to hundreds of

thousands of consumers in a nearby metropolitan area. The entity’s
1896 AMENDMENT 14—RIGHTS GUARANTEED

113The 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.’’ 114 Rosario v. Rockefeller, 410 U.S. 752 (1973). Justices Powell, Douglas, Brennan, and Marshall dissented. Id. at 763. 115Kusper v. Pontikes, 414 U.S. 51 (1973). Justices Blackmun and Rehnquist

dissented. Id. at 61, 65. 116Tashjian 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.

board of directors was elected through a system in which the eligibility to vote was as described above. The Court thought the entity

was a specialized and limited form to which its general franchise

rulings did not apply. 113

Finding that prevention of ‘‘raiding’’—the practice whereby voters in sympathy with one party vote in another’s primary election

in order to distort that election’s results—is a legitimate and valid

state goal, as one element in the preservation of the integrity of the

electoral process, the Court sustained a state law requiring those

voters eligible at that time to register to enroll in the party of their

choice at least 30 days before the general election in order to be

eligible to vote in the party’s next primary election, 8 to 11 months

hence. The law did not impose a prohibition upon voting but merely imposed a time deadline for enrollment, the Court held, and it

was because of the plaintiffs’ voluntary failure to register that they

did not meet the deadline. 114 But a law which prohibited a person

from voting in the primary election of a political party if he has

voted in the primary election of any other party within the preceding 23 months was subjected to strict scrutiny and was voided, inasmuch as it constituted a severe restriction upon a voter’s right

to associate with the party of his choice by requiring him to forgo

participation in at least one primary election in order to change

parties. 115 A less restrictive ‘‘closed primary’’ system was also invalidated, the Court finding insufficient justification for a state’s

preventing a political party from allowing independents to vote in

its primary. 116

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.
AMENDMENT 14—RIGHTS GUARANTEED 1897

117 457 U.S. 1 (1982). See also Fortson v. Morris, 385 U.S. 231 (1966) (legislature could select Governor from two candidates having highest number of votes cast

when no candidate received majority); Sailors v. Board of Elections, 387 U.S. 105

(1967) (appointment rather than election of county school board); Valenti v. Rockefeller, 292 F. Supp. 851 (S.D.N.Y. 1968) (three-judge court), aff’d, 393 U.S. 405

(1969) (gubernatorial appointment to fill United States Senate vacancy).

118McDonald 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).

119O’Brien v. Skinner, 414 U.S. 524 (1974). See American Party of Texas v.

White, 415 U.S. 767, 794–95 (1974).

Popular Democratic Party, 117 the Court unanimously sustained a

Puerto Rico statute which authorized the political party to which

an incumbent legislator belonged to designate his successor in office until the next general election upon his death or resignation.

Neither the fact that the seat was filled by appointment nor the

fact that the appointment was by the party, rather than by the

Governor or some other official, raised a constitutional question.

The right of unconvicted jail inmates and convicted

misdemeanants (who typically are under no disability) to vote by

absentee ballot remains unsettled. In an early case applying rational basis scrutiny, the Court held that the failure of a State to provide for absentee balloting by unconvicted jail inmates, when absentee ballots were available to other classes of voters, did not deny

equal protection when it was not shown that the inmates could not

vote in any other way. 118 Subsequently, the Court held unconstitutional a statute denying absentee registration and voting rights to

persons confined awaiting trial or serving misdemeanor sentences,

but it is unclear whether the basis was the fact that persons confined in jails outside the county of their residences could register

and vote absentee while those confined in the counties of their residences could not, or whether the statute’s jumbled distinctions

among categories of qualified voters on no rational standard made

it wholly arbitrary. 119

Access to the Ballot.—The equal protection clause applies to

state specification of qualifications for elective and appointive office. While one may ‘‘have no right’’ to be elected or appointed to

an office, all persons ‘‘do have a federal constitutional right to be

considered for public service without the burden of invidiously discriminatory disqualification. The State may not deny to some the

privilege of holding public office that it extends to others on the

basis of distinctions that violate federal constitutional guaran-
1898 AMENDMENT 14—RIGHTS GUARANTEED

120Turner v. Fouche, 396 U.S. 346, 362–63 (1970) (voiding a property qualification for appointment to local school board). See also Chappelle v. Greater Baton

Rouge Airport Dist., 431 U.S. 159 (1977) (voiding a qualification for appointment as

airport commissioner of ownership of real or personal property that is assessed for

taxes in the jurisdiction in which airport is located); Quinn v. Millsap, 491 U.S. 95

(1989) (voiding property ownership requirement for appointment to board authorized to propose reorganization of local government). Cf. Snowden v. Hughes, 321

U.S. 1 (1944). 121 405 U.S. 134, 142–44 (1972). 122 Id. at 144–49. 123Lubin v. Panish, 415 U.S. 709, 716 (1974). 124 Concurring, Justices Blackmun and Rehnquist suggested that a reasonable

alternative would be to permit indigents to seek write-in votes without paying a filing fee, id. at 722, but the Court indicated this would be inadequate. Id. at 719 n.5. 125 457 U.S. 957 (1982). A plurality of four contended that save in two circumstances—ballot access classifications based on wealth and ballot access classifications imposing burdens on new or small political parties or independent candidates—limitations on candidate access to the ballot merit only traditional rational

tees.’’ 120 In Bullock v. Carter, 121 the Court utilized a somewhat

modified form of the strict test in passing upon a filing fee system

for primary election candidates which imposed the cost of the election wholly on the candidates and which made no alternative provision for candidates unable to pay the fees; the reason for application of the standard, however, was that the fee system deprived

some classes of voters of the opportunity to vote for certain candidates and it worked its classifications along lines of wealth. The

system itself was voided because it was not reasonably connected

with the State’s interest in regulating the ballot and did not serve

that interest and because the cost of the election could be met out

of the state treasury, thus avoiding the discrimination. 122

Recognizing the state interest in maintaining a ballot of reasonable length in order to promote rational voter choice, the Court

observed nonetheless that filing fees alone do not test the genuineness of a candidacy or the extent of voter support for an aspirant.

Therefore, effectuation of the legitimate state interest must be

achieved by means that do not unfairly or unnecessarily burden the

party’s or the candidate’s ‘‘important interest in the continued

availability of political opportunity. The interests involved are not

merely those of parties or individual candidates; the voters can assert their preferences only through candidates or parties or both

and it is this broad interest that must be weighed in the balance.’’

‘‘[T]he process of qualifying candidates for a place on the ballot

may not constitutionally be measured solely in dollars.’’ 123 In the

absence of reasonable alternative means of ballot access, the Court

held, a State may not disqualify an indigent candidate unable to

pay filing fees. 124

In Clements v. Fashing, 125 the Court sustained two provisions

of state law, one that barred certain officeholders from seeking
AMENDMENT 14—RIGHTS GUARANTEED 1899

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).

126 393 U.S. 23 (1968). ‘‘[T]he totality of the Ohio restrictive laws taken as a

whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause.’’ Id. at 34. Justices Douglas and Harlan would have relied solely on the First Amendment, id. at

35, 41, while Justices Stewart and White and Chief Justice Warren dissented. Id.

at 48, 61, 63.

127Moore v. Ogilvie, 394 U.S. 814 (1969) (overruling MacDougall v. Green, 335

U.S. 281 (1948)).

election to the legislature during the term of office for which they

had been elected or appointed, but that did not reach other officeholders whose terms of office expired with the legislators’ terms

and did not bar legislators from seeking other offices during their

terms, and the other that automatically terminated the terms of

certain officeholders who announced for election to other offices,

but that did not apply to other officeholders who could run for another office while continuing to serve. The Court was splintered in

such a way, however, that it is not possible to derive a principle

from the decision applicable to other fact situations.

In Williams v. Rhodes, 126 a complex statutory structure which

had the effect of keeping off the ballot all but the candidates of the

two major parties was struck down under the strict test because it

deprived the voters of the opportunity of voting for independent

and third-party candidates and because it seriously impeded the

exercise of the right to associate for political purposes. Similarly,

a requirement that an independent candidate for office in order to

obtain a ballot position must obtain 25,000 signatures, including

200 signatures from each of at least 50 of the State’s 102 counties,

was held to discriminate against the political rights of the inhabitants of the most populous counties, when it was shown that

93.4% of the registered voters lived in the 49 most populous counties. 127 But to provide that the candidates of any political organization obtaining 20% or more of the vote in the last gubernatorial or

presidential election may obtain a ballot position simply by winning the party’s primary election while requiring candidates of

other parties or independent candidates to obtain the signatures of

less than five percent of those eligible to vote at the last election

for the office sought is not to discriminate unlawfully, inasmuch as
1900 AMENDMENT 14—RIGHTS GUARANTEED

128 Jenness v. Fortson, 403 U.S. 431 (1971). 129Storer 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). 130Storer v. Brown, 415 U.S. 724, 746 (1974). 131 Id. at 730 (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)).

the State placed no barriers of any sort in the way of obtaining signatures and since write-in votes were also freely permitted. 128

Reviewing under the strict test the requirements for qualification of new parties and independent candidates for ballot positions,

the Court recognized as valid objectives and compelling interests

the protection of the integrity of the nominating and electing process, the promotion of party stability, and the assurance of a modicum of order in regulating the size of the ballot by requiring a

showing of some degree of support for independents and new parties before they can get on the ballot. 129 ‘‘[T]o comply with the

First and Fourteenth Amendments the State must provide a feasible opportunity for new political organizations and their candidates to appear on the ballot.’’ 130 Decision whether or not a state

statutory structure affords a feasible opportunity is a matter of degree, ‘‘very much a matter of ‘consider[ing] the facts and circumstances behind the law, the interest which the State claims to

be protecting, and the interest of those who are disadvantaged by

the classification.’ ’’ 131

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,
AMENDMENT 14—RIGHTS GUARANTEED 1901

132 American Party of Texas v. White, 415 U.S. 767, 783 (1974). In Storer v.

Brown, 415 U.S. 724, 738–40 (1974), the Court remanded so that the district court

could determine whether the burden imposed on an independent party was too severe, it being required in 24 days in 1972 to gather 325,000 signatures from a pool

of qualified voters who had not voted in that year’s partisan primary elections. See

also Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979)

(voiding provision that required a larger number of signatures to get on ballot in

subdivisions than statewide). 133 American Party of Texas v. White, 415 U.S. 767, 788–91 (1974). The percentages varied with the office but no more than 500 signatures were needed in any

event. 134 Id. at 785–87. 135Storer 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. 136Munro v. Socialist Workers Party, 479 U.S. 189 (1986). 137 American Party of Texas v. White, 415 U.S. 767, 794–95 (1974). Upheld,

however, was state financing of the primary election expenses that excluded convention expenses of the small parties. Id. at 791–94. But the major parties had to hold

conventions simultaneously with the primary elections the cost of which they had

to bear. For consideration of similar contentions in the context of federal financing

of presidential elections, see Buckley v. Valeo, 424 U.S. 1, 93–97 (1976). 138 Anderson v. Celebrezze, 460 U.S. 780 (1983). State interests in assuring

voter education, treating all candidates equally (candidates participating in a party

primary also had to declare candidacy in March), and preserving political stability,

were deemed insufficient to justify the substantial impediment to independent candidates and their supporters.

or almost always, exclude parties with significant support from the

ballot,’’ but the Court thought that one percent, or 22,000 signatures in 1972, ‘‘falls within the outer boundaries of support the

State may require.’’ 132 Similarly, independent candidates can be

required to obtain a certain number of signatures as a condition to

obtain ballot space. 133 A State may validly require that each voter

participate only once in each year’s nominating process and it may

therefore disqualify any person who votes in a primary election

from signing nominating or supporting petitions for independent

parties or candidates. 134 Equally valid is a state requirement that

a candidate for elective office, as an independent or in a regular

party, must not have been affiliated with a political party, or with

one other than the one of which he seeks its nomination, within

one year prior to the primary election at which nominations for the

general election are made. 135 So too, a state may limit access to

the general election ballot to candidates who received at least 1%

of the primary votes cast for the particular office. 136 But it is impermissible to print the names of the candidates of the two major

parties only on the absentee ballots, leaving off independents and

other parties. 137 Also invalidated was a requirement that independent candidates for President and Vice-President file nominating petitions by March 20 in order to qualify for the November ballot. 138
1902 AMENDMENT 14—RIGHTS GUARANTEED

139Supra, pp. 687–98. Applicability of the doctrine to cases of this nature was

left unresolved in Smiley v. Holm, 285 U.S. 355 (1932), and Wood v. Broom, 287

U.S. 1 (1932), was supported by only a plurality in Colegrove v. Green, 328 U.S.

549 (1946), but became the position of the Court in subsequent cases. Cook v.

Fortson, 329 U.S. 675 (1946); Colegrove v. Barrett, 330 U.S. 804 (1947); MacDougall

v. Green, 335 U.S. 281 (1948); South v. Peters, 339 U.S. 276 (1950); Hartsfield v.

Sloan, 357 U.S. 916 (1958). 140 369 U.S. 186 (1962). 141 376 U.S. 1 (1964). Supra, pp. 106–08. Striking down a county unit system

of electing a governor, the Court, in an opinion by Justice Douglas, had already

coined a variant phrase of the more popular ‘‘one man, one vote.’’ ‘‘The conception

of political equality from the Declaration of Independence to Lincoln’s Gettysburg

Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only

one thing—one person, one vote.’’ Gray v. Sanders, 372 U.S. 368, 381 (1963). 142 Reynolds v. Sims, 377 U.S. 533 (1964); WMCA, Inc. v. Lomenzo, 377 U.S.

633 (1964); Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656 (1964);

Donis v. Mann, 377 U.S. 678 (1964); Roman v. Sincock, 377 U.S. 695 (1964); Lucas

v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964). In the last case,

the Court held that approval of the apportionment plan in a vote of the people was

insufficient to preserve it from constitutional attack. ‘‘An individual’s constitutionally protected right to cast an equally weighed vote cannot be denied even by

a vote of a majority of a State’s electorate, if the apportionment scheme adopted by

the voters fails to measure up to the requirements of the Equal Protection Clause.’’

Id. at 736. Justice Harlan dissented wholly, denying that the equal protection clause

had any application at all to apportionment and districting and contending that the

decisions were actually the result of a ‘‘reformist’’ nonjudicial attitude on the part

of the Court. 377 U.S. at 589. Justices Stewart and Clark dissented in two and concurred in four cases on the basis of their view that the equal protection clause was

satisfied by a plan that was rational and that did not systematically frustrate the

majority will. 377 U.S., 741, 744. 143 Reynolds v. Sims, 377 U.S. 533, 568 (1964).

Apportionment and Districting.—Prior to 1962, attacks in

federal courts on the drawing of boundaries for congressional and

legislative election districts or the apportionment of seats to previously existing units ran afoul of the ‘‘political question’’ doctrine. 139 But Baker v. Carr 140 reinterpreted the doctrine in considerable degree and opened the federal courts to voter complaints

founded on unequally populated voting districts. Wesberry v. Sanders 141 found in Article I, § 2, of the Constitution a command that

in the election of Members of the House of Representatives districts

were to be made up of substantially equal numbers of persons. In

six decisions handed down on June 15, 1964, the Court required

the alteration of the election districts for practically all the legislative bodies in the United States. 142

‘‘We hold that, as a basic constitutional standard, the Equal

Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population

basis. Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with the votes of citizens living

in other parts of the State.’’ 143 What was required was that each
AMENDMENT 14—RIGHTS GUARANTEED 1903

144 Id. at 577. 145Sailors v. Board of Education, 387 U.S. 105 (1967). 146 390 U.S. 474 (1968). Justice Harlan continued his dissent from the Reynolds

line of cases, id. at 486, while Justices Fortas and Stewart called for a more discerning application and would not have applied the principle to the county council here.

Id. at 495, 509. 147 397 U.S. 50 (1970). The governmental body here was the board of trustees

of a junior college district. Justices Harlan and Stewart and Chief Justice Burger

dissented. Id. at 59, 70. 148The 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).

State ‘‘make an honest and good faith effort to construct districts,

in both houses of its legislature, as nearly of equal population as

is practicable. We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number

of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.’’ 144

Among the principal issues raised by these decisions were

which units were covered by the principle, to what degree of

exactness population equality had to be achieved, and to what

other elements of the apportionment and districting process the

equal protection clause extended.

The first issue has largely been resolved, although some few

problem areas persist. It has been held that a school board the

members of which were appointed by boards elected in units of disparate populations and which exercised only administrative powers

rather than legislative powers was not subject to the principle of

the apportionment ruling. 145 Avery v. Midland County 146 held that

when a State delegates lawmaking power to local government and

provides for the election by district of the officials to whom the

power is delegated, the districts must be established of substantially equal populations. But in Hadley v. Junior College District, 147 the Court abandoned much of the limitation which was explicit in these two decisions and held that whenever a State chooses to vest ‘‘governmental functions’’ in a body and to elect the members of that body from districts, the districts must have substantially equal populations. The ‘‘governmental functions’’ should not

be characterized as ‘‘legislative’’ or ‘‘administrative’’ or necessarily

important or unimportant; it is the fact that members of the body

are elected from districts which triggers the application. 148
1904 AMENDMENT 14—RIGHTS GUARANTEED

149 385 U.S. 440, 443–44 (1967). See also Kilgarlin v. Hill, 386 U.S. 120 (1967). 150Kirkpatrick v. Preisler, 385 U.S. 450 (1967); Duddleston v. Grills, 385 U.S.

455 (1967). 151Kirkpatrick v. Preisler, 394 U.S. 526, 530–31 (1969); Wells v. Rockefeller,

394 U.S. 542 (1969). Supra, pp. 107–08. The Court has continued to adhere to this

strict standard for congressional districting, voiding a plan in which the maximum

deviation between largest and smallest district was 0.7%, or 3,674 persons. Karcher

v. Daggett, 462 U.S. 725 (1983) (rejecting assertion that deviations less than estimated census error are necessarily permissible). 152The Court relied on Swann in disapproving of only slightly smaller deviations (roughly 28% and 25%) in Whitcomb v. Chavis, 403 U.S. 124, 161–63 (1971).

In Connor v. Williams, 404 U.S. 549, 550 (1972), the Court said of plaintiffs’ reliance

on Preisler and Wells that ‘‘these decisions do not squarely control the instant appeal since they do not concern state legislative apportionment, but they do raise

substantial questions concerning the constitutionality of the District Court’s plan as

a design for permanent apportionment.’’ 153 403 U.S. 182 (1971). 154 It should also be noted that while the Court has used total population figures for purposes of computing variations between districts, it did approve in Burns

v. Richardson, 384 U.S. 73 (1966), the use of eligible voter population as the basis

for apportioning in the context of a State with a large transient military population,

but with the caution that such a basis would be permissible only so long as the results did not diverge substantially from that obtained by using a total population

base. Merely discounting for military populations was disapproved in Davis v.

Mann, 377 U.S. 678, 691 (1964), but whether some more precise way of distinguishing between resident and nonresident population would be constitutionally permissible is unclear. Kirkpatrick v. Preisler, 394 U.S. 526, 534 (1969); Hadley v. Junior

College Dist., 397 U.S. 50, 57 n.9 (1970).

The second issue has been largely but not precisely resolved.

In Swann v. Adams, 149 the Court set aside a lower court ruling

‘‘for the failure of the State to present or the District Court to articulate acceptable reasons for the variations among the populations of the various legislative districts. . . . De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de

minimis and none of our cases suggests that differences of this

magnitude will be approved without a satisfactory explanation

grounded on acceptable state policy.’’ Two congressional district

cases were disposed of on the basis of Swann, 150 but when the

Court ruled that no congressional districting could be approved

without a ‘‘good-faith effort to achieve precise mathematical equality’’ or the justification of ‘‘each variance, no matter how small, 151

it did not then purport to utilize this standard in judging legislative apportionment and districting. 152 And in Abate v. Mundt 153

the Court approved a plan for apportioning a county governing

body which permitted a substantial population disparity, explaining that in the absence of a built-in bias tending to favor any particular area or interest, a plan could take account of localized factors in justifying deviations from equality which might in other circumstances cause the invalidation of a plan. 154 The total population deviation allowed in Abate was 11.9%; the Court refused,
AMENDMENT 14—RIGHTS GUARANTEED 1905

155 New York City Bd. of Estimate v. Morris, 489 U.S. 688 (1989). Under the

plan each of the City’s five boroughs was represented on the board by its president

and each of these members had one vote; three citywide elected officials (the mayor,

the comptroller, and the president of the city council) were also placed on the board

and given two votes apiece (except that the mayor had no vote on the acceptance

or modification of his budget proposal). The Court also ruled that, when measuring

population deviation for a plan that mixes at-large and district representation, the

at-large representation must be taken into account. Id. at 699–701. 156Mahan v. Howell, 410 U.S. 315, 320–25 (1973). 157 Id. at 325–30. The Court indicated that a 16.4% deviation ‘‘may well approach tolerable limits.’’ Id. at 329. Dissenting, Justices Brennan, Douglas, and Marshall would have voided the plan; additionally, they thought the deviation was actually 23.6% and that the plan discriminated geographically against one section of the

State, an issue not addressed by the Court. In Chapman v. Meier, 420 U.S. 1, 21–

26 (1975), holding that a 20% variation in a court-developed plan was not justified,

the Court indicated that such a deviation in a legislatively-produced plan would be

quite difficult to justify. See also Summers v. Cenarrusa, 413 U.S. 906 (1973)

(vacating and remanding for further consideration the approval of a 19.4% deviation). In Brown v. Thomson, 462 U.S. 835 (1983), the Court held that a consistent

state policy assuring each county at least one representative can justify substantial

deviation from population equality when only the marginal impact of representation

for the state’s least populous county was challenged (the effect on plaintiffs, voters

in larger districts, was that they would elect 28 of 64 members rather than 28 of

63), but there was indication in Justice O’Connor’s concurring opinion that a broader-based challenge to the plan, which contained a 16% average deviation and an

89% maximum deviation, could have succeeded.

however, to extend Abate to approve a total deviation of 78% resulting from an apportionment plan providing for representation of

each of New York City’s five boroughs on the New York City Board

of Estimate. 155

Nine years after Reynolds v. Sims, the Court reexamined the

population equality requirement of the apportionment cases. Relying upon language in prior decisions that distinguished legislative

apportionment from congressional districting as possibly justifying

different standards of permissible deviations from equality, the

Court held that more flexibility is constitutionally permissible with

respect to the former than to the latter. 156 But it was in determining how much greater flexibility was permissible that the Court

moved in new directions. First, applying the traditional standard

of rationality rather than the strict test of compelling necessity, the

Court held that a maximum 16.4% deviation from equality of population was justified by the State’s policy of maintaining the integrity of political subdivision lines, or according representation to

subdivisions qua subdivisions, because the legislature was responsible for much local legislation. 157 Second, just as the first case

‘‘demonstrates, population deviations among districts may be sufficiently large to require justification but nonetheless be justified

and legally sustainable. It is now time to recognize . . . that minor

deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious
1906 AMENDMENT 14—RIGHTS GUARANTEED

158Gaffney 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].’’ 159Gaffney v. Cummings, 412 U.S. 735, 748 (1973). By contrast, the Court has

held that estimated margin of error for census statistics does not justify deviation

from population equality in congressional districting. Karcher v. Daggett, 462 U.S.

725 (1983). 160 Chapman v. Meier, 420 U.S. 1, 21–27 (1975). The Court did say that 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). 161Gomillion v. Lightfoot, 364 U.S. 339 (1960); Wright v. Rockefeller, 376 U.S.

52 (1964); Sims v. Baggett, 247 F. Supp. 96 (M.D. Ala. 1965) (three-judge court). 162 E.g., WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D.N.Y. 1965) (three-judge

court), aff’d, 382 U.S. 4 (1965); Sincock v. Gately, 262 F. Supp. 739 (D. Del. 1967)

(three-judge court).

discrimination under the Fourteenth Amendment so as to require

justification by the State.’’ 158 This recognition of a de minimis deviation, below which no justification was necessary, was mandated,

the Court felt, by the margin of error in census statistics, by the

population change over the ten-year life of an apportionment, and

by the relief it afforded federal courts able thus to avoid over-involvement in essentially a political process. The ‘‘goal of fair and

effective representation’’ is furthered by eliminating gross population variations among districts, but it is not achieved by mathematical equality solely. Other relevant factors are to be taken into

account. 159 But when a judicially-imposed plan is to be formulated

upon state default, it ‘‘must ordinarily achieve the goal of population equality with little more than de minimis variation’’ and deviations from approximate population equality must be supported

by enunciation of historically significant state policy or unique features. 160

Gerrymandering and the permissible use of multimember districts present examples of the third major issue. It is clear that racially based gerrymandering is unconstitutional under the Fifteenth Amendment, at least when it is accomplished through the

manipulation of district lines. 161 Partisan gerrymandering raised

more difficult issues. Several lower courts ruled that the issue was

beyond judicial cognizance, 162 and the Supreme Court itself, upholding an apportionment plan frankly admitted to have been

drawn with the intent to achieve a rough approximation of the
AMENDMENT 14—RIGHTS GUARANTEED 1907

163Gaffney v. Cummings, 412 U.S. 735, 751, 754 (1973). 164 478 U.S. 109 (1986). The vote on justiciability was 6–3, with Justice White’s

opinion of the Court being joined by Justices Brennan, Marshall, Blackmun, Powell,

and Stevens. This represented an apparent change of view by 3 of the majority Justices, who just 2 years earlier had denied that ‘‘the existence of noncompact or gerrymandered districts is by itself a constitutional violation.’’ Karcher v. Daggett, 466

U.S. 910, 917 (1983) (Justice Brennan, joined by Justices White and Marshall, dissenting from denial of stay in challenge to district court’s rejection of a remedial districting plan on the basis that it contained ‘‘an intentional gerrymander’’). 165Only Justices Powell and Stevens thought the Indiana redistricting plan

void; Justice White, joined by Justices Brennan, Marshall, and Blackmun, thought

the record inadequate to demonstrate continuing discriminatory impact, and Justice

O’Connor, joined by Chief Justice Burger and by Justice Rehnquist, would have

ruled that partisan gerrymandering is nonjusticiable as constituting a political question not susceptible to manageable judicial standards. 166 377 U.S. 533, 565–66 (1964). This phrase has had a life of its own in the

commentary. See D. Alfange, Jr., Gerrymandering and the Constitution: Into the

Thorns of the Thicket at Last, 1986 SUP. CT. REV. 175, and sources cited therein.

It is not clear from its original context, however, that the phrase was coined with

such broad application in mind. 167The quotation is from the Baker v. Carr measure for existence of a political

question, 369 U.S. 186, 217 (1962).

statewide political strengths of the two parties, recognized the goal

as legitimate and observed that, while the manipulation of apportionment and districting is not wholly immune from judicial scrutiny, ‘‘we have not ventured far or attempted the impossible task

of extirpating politics from what are the essentially political processes of the sovereign States.’’ 163

More recently, however, in a decision of potentially major import reminiscent of Baker v. Carr, the Court in Davis v.

Bandemer 164 ruled that partisan gerrymandering in state legislative redistricting is justiciable under the Equal Protection Clause.

But although the vote was 6 to 3 in favor of justiciability, a majority of Justices could not agree on the proper test for determining

whether particular gerrymandering is unconstitutional, and the

lower court’s holding of unconstitutionality was reversed by vote of

7 to 2. 165 Thus, while courthouse doors are now ajar for claims of

partisan gerrymandering, it is unclear what it will take to succeed

on the merits. On the justiciability issue, the Court viewed the ‘‘political question’’ criteria as no more applicable than they had been

in Baker v. Carr. Because Reynolds v. Sims had declared ‘‘fair and

effective representation for all citizens’’ 166 to be ‘‘the basic aim of

legislative apportionment,’’ and because racial gerrymandering issues had been treated as justiciable, the Court viewed the representational issues raised by partisan gerrymandering as indistinguishable. Agreement as to the existence of ‘‘judicially discoverable

and manageable standards for resolving’’ gerrymandering issues,

however, did not result in a consensus as to what those standards

are. 167 While a majority of Justices agreed that discriminatory ef-
1908 AMENDMENT 14—RIGHTS GUARANTEED

168 478 U.S. at 133. Joining in this part of the opinion were Justices Brennan,

Marshall, and Blackmun. 169 478 U.S. at 173. A similar approach had been proposed in Justice Stevens’

concurring opinion in Karcher v. Daggett, 462 U.S. 725, 744 (1983). 170Fortson v. Dorsey, 379 U.S. 433, 439 (1965); Burns v. Richardson, 384 U.S.

73, 88–89 (1965); Kilgarlin v. Hill, 386 U.S. 120, 125 n.3 (1967). 171 403 U.S. 124 (1971). Justice Harlan concurred specially, id. at 165, and Justices Douglas, Brennan, and Marshall, dissented, finding racial discrimination in

the operation of the system. Id. at 171.

fect as well as discriminatory intent must be shown, there was significant disagreement as to what constitutes discriminatory effect.

Justice White’s plurality opinion suggested that there need be ‘‘evidence of continued frustration of the will of a majority of the voters

or effective denial to a minority of voters of a fair chance to influence the political process.’’ 168 Moreover, continued frustration of

the chance to influence the political process can not be demonstrated by the results of only one election; there must be a history of disproportionate results or a finding that such results will

continue. Justice Powell, joined by Justice Stevens, did not formulate a strict test, but suggested that ‘‘a heavy burden of proof’’

should be required, and that courts should look to a variety of factors as they relate to ‘‘the fairness of a redistricting plan’’ in determining whether it contains invalid gerrymandering. Among these

factors are the shapes of the districts, adherence to established

subdivision lines, statistics relating to vote dilution, the nature of

the legislative process by which the plan was formulated, and evidence of intent revealed in legislative history. 169

It had been thought that the use of multimember districts to

submerge racial, ethnic, and political minorities might be treated

differently, 170 but in Whitcomb v. Chavis 171 the Court, while dealing with the issue on the merits, so enveloped it in strict standards

of proof and definitional analysis as to raise the possibility that it

might be beyond judicial review.

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
AMENDMENT 14—RIGHTS GUARANTEED 1909

172 412 U.S. 755, 765–70 (1973). 173 ‘‘To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential.

The plaintiffs’ burden is to produce evidence to support findings that the political

processes leading to nomination and election were not equally open to participation

by the group in question—that its members had less opportunity than did other

residents in the district to participate in the political processes and to elect legislators of their choice.’’ Id. at 765–66. 174 446 U.S. 55 (1980). On Congress’ response to the case, see supra, pp. 1818–

19; infra, p. 1936. 175 Id. at 65–68 (Justices Stewart, Powell, Rehnquist, and Chief Justice Burger).

On intent versus impact analysis, see supra, pp. 1815–20. Justices Blackmun and

Stevens concurred on other grounds, id. at 80, 83, and Justices White, Brennan, and

Marshall dissented. Id. at 94, 103. Justice White agreed that purposeful discrimination must be found, id. at 101, while finding it to have been shown, Justice

Blackmun assumed that intent was required, and Justices Stevens, Brennan, and

Marshall would not so hold.

in single-member or in multimember districts. That fact of life was

not of constitutional dimension, whether the group was composed

of blacks, or Republicans or Democrats, or some other category of

persons. Thus, the submerging argument was rejected, as was the

argument of a voter in another county that the Court should require uniform single-member districting in populous counties because voters in counties which elected large delegations in blocs

had in effect greater voting power than voters in other districts;

this argument the Court found too theoretical and too far removed

from the actualities of political life.

Subsequently, and surprisingly in light of Chavis, the Court in

White v. Regester 172 affirmed a district court invalidation of the use

of multimember districts in two Texas counties on the ground that,

when considered in the totality of the circumstances of discrimination in registration and voting and in access to other political opportunities, such use denied African Americans and Mexican Americans the opportunity to participate in the election process in a reliable and meaningful manner. 173

Doubt was cast on the continuing vitality of White v. Regester,

however, by the badly split opinion of the Court in City of Mobile

v. Bolden. 174 A plurality undermined the earlier case in two respects, although it is not at all clear that a majority of the Court

had been or could be assembled on either point. First, the plurality

argued that an intent to discriminate on the part of the redistricting body must be shown before multimember districting can be

held to violate the equal protection clause. 175 Second, the plurality

read White v. Regester as being consistent with this principle and

the various factors developed in that case to demonstrate the existence of unconstitutional discrimination to be in fact indicia of intent; however, the plurality seemingly disregarded the totality of
1910 AMENDMENT 14—RIGHTS GUARANTEED

176 Id. at 68–74. Four Justices rejected this view of the plurality, while Justice

Stevens also appeared to do so but followed a mode of analysis significantly different

than that of any other Justice. 177 458 U.S. 613 (1982). Joining the opinion of the Court were Justices White,

Brennan, Marshall, Blackmun, O’Connor, and Chief Justice Burger. Dissenting were

Justices Powell and Rehnquist, id. at 628, and Justice Stevens. Id. at 631. 178On the legislation, see supra, pp. 1818–19; infra, p. 1936. 179 478 U.S. 30, 50–51 (1986). Use of multimember districting for purposes of

political gerrymandering was at issue in Davis v. Bandemer, 478 U.S. 109 (1986),

decided the same day as Gingles, but there was no agreement as to the appropriate

constitutional standard. A plurality led by Justice White relied on the Whitcomb v.

Chavis reasoning, suggesting that proof that multimember districts were constructed for the advantage of one political party falls short of the necessary showing

of deprivation of opportunity to participate in the electoral process. 478 U.S. at 136–

37. Two Justices thought the proof sufficient for a holding of invalidity, the minority

party having won 46% of the vote but only 3 of 21 seats from the multimember districts, and ‘‘the only discernible pattern [being] the appearance of these districts in

areas where their winner-take-all aspects can best be employed to debase [one party’s] voting strength,’’ (id. at at 179–80, Justices Powell and Stevens), and three Justices thought political gerrymandering claims to be nonjusticiable. 180 E.g., Reynolds v. Sims, 377 U.S. 533, 586–87 (1964); Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 195–200 (1972); White v. Weiser, 412

circumstances test utilized in Regester and evaluated instead

whether each factor alone was sufficient proof of intent. 176

Again switching course, the Court in Rogers v. Lodge 177 approved the findings of the lower courts that a multimember electoral system for electing a county board of commissioners was

being maintained for a racially discriminatory purpose, although it

had not been instituted for that purpose. Applying a totality of the

circumstances test, and deferring to lower court factfinding, the

Court, in an opinion by one of the Mobile dissenters, canvassed a

range of factors which it held could combine to show a discriminatory motive, and largely overturned the limitations which the Mobile plurality had attempted to impose in this area. With the enactment of federal legislation specifically addressed to the issue of

multimember districting and dilution of the votes of racial minorities, however, it may be that the Court will have little further opportunity to develop the matter in the context of constitutional litigation. 178 In Thornburg v. Gingles, 179 the Court held that

multimember districting violates § 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, 180 although that power is bounded by
AMENDMENT 14—RIGHTS GUARANTEED 1911

U.S. 783, 794–95 (1973); Upham v. Seamon, 456 U.S. 37, 41–42 (1982). When courts

draw their own plans, the court is held to tighter standards than is a legislature

and has to observe smaller population deviations and utilize single-member districts

more than multimember ones. Connor v. Johnson, 402 U.S. 690, 692 (1971); Chapman v. Meier, 420 U.S. 1, 14–21 (1975); Wise v. Lipscomb, 437 U.S. 535, 540 (1978).

Cf. Mahan v. Howell, 410 U.S. 315, 333 (1973).

181 E.g., Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187 (1972)

(reduction of numbers of members); Whitcomb v. Chavis, 403 U.S. 124, 160–61

(1971) (disregard of policy of multimember districts not found unconstitutional);

White v. Weiser, 412 U.S. 783, 794–95 (1973); Upham v. Seamon, 406 U.S. 37

(1982). But see Karcher v. Daggett, 466 U.S. 910 (1983) (denying cert. over dissent’s

suggestion that court-adopted congressional districting plan had strayed too far from

the structural framework of the legislature’s invalidated plan). 182 372 U.S. 368 (1963). 183 403 U.S. 1 (1971). 1Dunn 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.

the constitutional violations found, so that courts do not have carte

blanche, and they should ordinarily respect the structural decisions

made by state legislatures and the state constitutions. 181

Weighing of Votes.—It is not the weighing of votes but the

manner in which it is done which brings the equal protection

clause into play. Gray v. Sanders 182 struck down the Georgia county unit system under which each county was allocated either two,

four, or six votes in statewide elections and the candidate carrying

the county received those votes. Since there were a few very populous counties and scores of poorly-populated ones, the rural counties in effect dominated statewide elections and candidates with

popular majorities statewide could be and were defeated. But Gordon v. Lance 183 approved a provision requiring a 60 percent affirmative vote in a referendum election before constitutionally prescribed limits on bonded indebtedness or tax rates could be exceeded. The Court acknowledged that the provision departed from

strict majority rule but stated that the Constitution did not prescribe majority rule; it instead proscribed discrimination through

dilution of voting power or denial of the franchise because of some

class characteristic—race, urban residency, or the like—while the

provision in issue was neither directed to nor affected any identifiable class.

The Right to Travel

Durational Residency Requirements.—A durational residency requirement creates two classes of persons: those who have

been within the State for the prescribed period and those who have

not been. 1 But persons who have moved recently, at least from
1912 AMENDMENT 14—RIGHTS GUARANTEED

2 Intrastate travel is protected to the extent that the classification fails to meet

equal protection standards in some respect. Compare Hadnott v. Amos, 320 F. Supp.

107 (M.D. Ala. 1970) (three-judge court), aff’d. per curiam, 405 U.S. 1035 (1972),

with Arlington County Bd. v. Richards, 434 U.S. 5 (1977). The same principle applies in the commerce clause cases, in which discrimination may run against instate as well as out-of-state concerns. Cf. Dean Milk Co. v. City of Madison, 340 U.S.

349 (1951). 3Shapiro 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). 4Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (emphasis by Court); Graham

v. Richardson, 403 U.S. 365, 375–76 (1971). 5 Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868); Edwards v. California, 314

U.S. 160 (1941) (both cases in context of direct restrictions on travel). The source

of the right to travel and the reasons for reliance on the equal protection clause are

questions puzzled over and unresolved by the Court. United States v. Guest, 383

U.S. 745, 758, 759 (1966), and id. at 763–64 (Justice Harlan concurring and dissenting), id. at 777 n.3 (Justice Brennan concurring and dissenting); Shapiro v. Thompson, 394 U.S. 618, 629–31 (1969), and id. at 671 (Justice Harlan dissenting); San

Antonio School Dist. v. Rodriguez, 411 U.S. 1, 31–32 (1973); Jones v. Helms, 452

U.S. 412, 417–19 (1981); Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id.

at 66–68 (Justice Brennan concurring), 78–81 (Justice O’Connor concurring). 6 394 U.S. 618 (1969).

7The durational residency provision established by Congress for the District of

Columbia was also voided. Id. at 641–42. 8 Id. at 627–33. Gaddis v. Wyman, 304 F. Supp. 717 (N.D.N.Y. 1969), aff’d sub

nom. Wyman v. Bowens, 397 U.S. 49 (1970), struck down a provision construed so

as to bar only persons who came into the State solely to obtain welfare assistance.

State to State, 2 have exercised a right protected by the Constitution of the United States, and the durational residency classification either deters the exercise of the right or penalizes those who

have exercised the right. 3 Any such classification is invalid ‘‘unless

shown to be necessary to promote a compelling governmental interest.’’ 4 The constitutional right to travel has long been recognized, 5

but it is only relatively recently that the strict standard of equal

protection review has been applied to nullify those durational residency provisions which have been brought before the Court.

Thus, in Shapiro v. Thompson, 6 durational residency requirements conditioning eligibility for welfare assistance on one year’s

residence in the State 7 were voided. If the purpose of the requirements was to inhibit migration by needy persons into the State or

to bar the entry of those who came from low-paying States to higher-paying ones in order to collect greater benefits, the Court said,

the purpose was impermissible. 8 If on the other hand the purpose

was to serve certain administrative and related governmental objectives—the facilitation of the planning of budgets, the provision

of an objective test of residency, minimization of opportunity for

fraud, and encouragement of early entry of new residents into the

labor force—the requirements were rationally related to the pur-
AMENDMENT 14—RIGHTS GUARANTEED 1913

9 394 U.S. at 633–38. Shapiro was reaffirmed in Graham v. Richardson, 403

U.S. 365 (1971) (striking down durational residency requirements for aliens applying for welfare assistance), and in Memorial Hospital v. Maricopa County, 415 U.S.

250 (1974) (voiding requirement of one year’s residency in county as condition to

indigent’s receiving nonemergency hospitalization or medical care at county’s expense). When Connecticut and New York reinstituted the requirements, pleading a

financial emergency as the compelling state interest, they were summarily rebuffed.

Rivera v. Dunn, 329 F. Supp. 554 (D. Conn. 1971), aff’d per curiam, 404 U.S. 1054

(1972); Lopez v. Wyman, Civ. No. 1971–308 (W.D.N.Y. 1971), aff’d per curiam, 404

U.S. 1055 (1972). The source of the funds, state or federal, is irrelevant to application of the principle. Pease v. Hansen, 404 U.S. 70 (1971). 10 405 U.S. 330 (1972). But see Marston v. Lewis, 410 U.S. 679 (1973), and

Burns v. Fortson, 410 U.S. 686 (1973). Durational residency requirements of five

and seven years respectively for candidates for elective office were sustained in

Kanapaux v. Ellisor, 419 U.S. 891 (1974), and Sununu v. Stark, 420 U.S. 958 (1975). 11 419 U.S. 393 (1975). Justices Marshall and Brennan dissented on the merits.

Id. at 418. 12 Id. at 409. But the Court also indicated that the plaintiff was not absolutely

barred from the state courts, but merely required to wait for access (which was true

in the prior cases as well and there held immaterial), and that possibly the state

interests in marriage and divorce were more exclusive and thus more immune from

federal constitutional attack than were the matters at issue in the previous cases.

The Court also did not indicate whether it was using strict or traditional scrutiny. 13Starns 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.

pose but they were not compelling enough to justify a classification

which infringed on a fundamental interest. 9 Similarly, in Dunn v.

Blumstein, 10 where the durational residency requirements denied

the franchise to newcomers, the assertion of such administrative

justifications was constitutionally insufficient to justify the classification.

However, a state one-year durational residency requirement

for the initiation of a divorce proceeding was sustained in Sosna v.

Iowa. 11 While it is not clear what the precise basis of the ruling

is, it appears that the Court found that the State’s interest in requiring that those who seek a divorce from its courts be genuinely

attached to the State and its desire to insulate divorce decrees from

the likelihood of collateral attack justified the requirement. 12 Similarly, durational residency requirements for lower in-state tuition

at public colleges have been held constitutionally justifiable, again,

however, without a clear statement of reason. 13

A state scheme for returning to its residents a portion of the

income earned from the vast oil deposits discovered within Alaska

foundered upon the formula for allocating the dividends; that is,

each adult resident received one unit of return for each year of residency subsequent to 1959, the first year of Alaska’s statehood. The

law thus created fixed, permanent distinctions between an ever-in-
1914 AMENDMENT 14—RIGHTS GUARANTEED

14Zobel 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). 15La Tourette v. McMaster, 248 U.S. 465 (1919), upholding a two-year residence

requirement to become an insurance broker, must be considered of questionable validity. Durational periods for admission to the practice of law or medicine or other

professions have evoked differing responses by lower courts. 16 E.g., McCarthy v. Philadelphia Civil Service Comm’n, 424 U.S. 645 (1976) (ordinance requiring city employees to be and to remain city residents upheld). See Memorial Hospital v. Maricopa County, 415 U.S. 250, 255 (1974). See also Martinez

v. Bynum, 461 U.S. 321 (1983) (bona fide residency requirement for free tuition to

public schools). 17 Jones v. Helms, 452 U.S. 412 (1981) (statute made it a misdemeanor to abandon a dependent child but a felony to commit the offense and then leave the State). 18 434 U.S. 374 (1978). 19 Although the Court’s due process decisions have broadly defined a protected

liberty interest in marriage and family, no previous case had held marriage to be

a fundamental right occasioning strict scrutiny. Id. at 396, 397 (Justice Powell concurring).

creasing number of classes of bona fide residents based on how long

they had been in the State. The differences between the durational

residency cases previously decided did not alter the bearing of the

right to travel principle upon the distribution scheme, but the

Court’s decision went off on the absence of any permissible purpose

underlying the apportionment classification and it thus failed even

the rational basis test. 14

Unresolved still are issues such as durational residency requirements for occupational licenses and other purposes. 15 Too, it

should be noted that this line of cases does not apply to state residency requirements themselves, as distinguished from durational

provisions, 16 and the cases do not inhibit the States when, having

reasons for doing so, they bar travel by certain persons. 17

Marriage and Familial Relations

In Zablocki v. Redhail, 18 importing into equal protection analysis the doctrines developed in substantive due process, the Court

identified the right to marry as a ‘‘fundamental interest’’ that necessitates ‘‘critical examination’’ of governmental restrictions which

‘‘interfere directly and substantially’’ with the right. 19 Struck down

was a statute that prohibited any resident under an obligation to

support minor children from marrying without a court order; such

order could only be obtained upon a showing that the support obligation had been and was being complied with and that the children

were not and were not likely to become public charges. The plaintiff was an indigent wishing to marry but prevented from doing so

because he was not complying with a court order to pay support to

an illegitimate child he had fathered, and because the child was re-
AMENDMENT 14—RIGHTS GUARANTEED 1915

20 Id. at 388. Although the passage is not phrased in the usual compelling interest terms, the concurrence and the dissent so viewed it without evoking disagreement from the Court. Id. at 396 (Justice Powell), 403 (Justice Stevens), 407 (Justice

Rehnquist). Justices Powell and Stevens would have applied intermediate scrutiny

to void the statute, both for its effect on the ability to marry and for its impact upon

indigents. Id. at 400, 406 n.10. 21 Id. at 386–87. Chief Justice Burger thought the interference here was ‘‘intentional and substantial,’’ whereas the provision in Jobst was neither. Id. at 391 (concurring). 22 434 U.S. 47 (1977).

ceiving public assistance. Applying ‘‘critical examination,’’ the

Court observed that the statutory prohibition could not be sustained unless it was justified by sufficiently important state interests and was closely tailored to effectuate only those interests. 20

Two interests were offered that the Court was willing to accept as

legitimate and substantial: requiring permission under the circumstances furnished an opportunity to counsel applicants on the

necessity of fulfilling support obligations, and the process protected

the welfare of children who needed support, either by providing an

incentive to make support payments or by preventing applicants

from incurring new obligations through marriage. The first interest

was not served, the Court found, there being no provision for counseling and no authorization of permission to marry once counseling

had taken place. The second interest was found not to be effectuated by the means. Alternative devices to collect support existed,

the process simply prevented marriage without delivering any

money to the children, and it singled out obligations incurred

through marriage without reaching any other obligations.

Other restrictions that relate to the incidents of or prerequisites for marriage were carefully distinguished by the Court

as neither entitled to rigorous scrutiny nor put in jeopardy by the

decision. 21 For example, in Califano v. Jobst, 22 a unanimous Court

sustained a Social Security provision that revoked disabled dependents’ benefits of any person who married, except when the person

married someone who was also entitled to receive disabled dependents’ benefits. Plaintiff, a recipient of such benefits, married someone who was also disabled but not qualified for the benefits, and

his benefits were terminated. He sued, alleging that distinguishing

between classes of persons who married eligible persons and who

married ineligible persons infringed upon his right to marry. The

Court rejected the argument, finding that benefit entitlement was

not based upon need but rather upon actual dependency upon the

insured wage earner; marriage, Congress could have assumed, generally terminates the dependency upon a parent-wage earner.

Therefore, it was permissible as an administrative convenience to

make marriage the terminating point but to make an exception
1916 AMENDMENT 14—RIGHTS GUARANTEED

23 Id. at 54. See also Mathews v. De Castro, 429 U.S. 181 (1976) (provision giving benefits to a married woman under 62 with dependent children in her care

whose husband retires or becomes disabled but denying them to a divorced woman

under 62 with dependents represents a rational judgment by Congress with respect

to likely dependency of married but not divorced women and does not deny equal

protection); Califano v. Boles, 443 U.S. 282 (1979) (limitation of certain Social Security benefits to widows and divorced wives of wage earners does not deprive mother

of illegitimate child who was never married to wage earner of equal protection). 24See, 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). 25San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973). 26 351 U.S. 12 (1956). The opinion of the court was joined by Justices Black,

Douglas, and Clark, and Chief Justice Warren. Justice Frankfurter concurred. Id.

at 20. Justices Burton, Minton, Reed, and Harlan dissented. Id. at 26, 29.

when both marriage partners were receiving benefits, as a means

of lessening hardship and recognizing that dependency was likely

to continue. The marriage rule was therefore not to be strictly scrutinized or invalidated ‘‘simply because some persons who might

otherwise have married were deterred by the rule or because some

who did marry were burdened thereby.’’ 23

It seems obvious, therefore, that the determination of marriage

and familial relationships as fundamental will be a fruitful beginning of litigation in the equal protection area. 24

Poverty and Fundamental Interests: The Intersection of Due

Process and Equal Protection

Generally.—Whatever may be the status of wealth distinctions per se as a suspect classification, 25 there is no doubt that

when the classification affects some area characterized as or considered to be fundamental in nature in the structure of our polity—

the ability of criminal defendants to obtain fair treatment throughout the system, the right to vote, to name two examples—then the

classifying body bears a substantial burden in justifying what it

has done. The cases begin with Griffin v. Illinois, 26 surely one of

the most seminal cases in modern constitutional law. There, the

State conditioned full direct appellate review, review as to which

all convicted defendants were entitled, on the furnishing of a bill

of exceptions or report of the trial proceedings, in the preparation

of which the stenographic transcript of the trial was usually essential. Only indigent defendants sentenced to death were furnished

free transcripts; all other convicted defendants had to pay a fee to

obtain them. ‘‘In criminal trials,’’ Justice Black wrote in the plurality opinion, ‘‘a State can no more discriminate on account of pov-
AMENDMENT 14—RIGHTS GUARANTEED 1917

27 Id. at 17, 18, 19. Although Justice Black was not explicit, it seems clear that

the system was found to violate both the due process and the equal protection

clauses. Justice Frankfurter’s concurrence dealt more expressly with the premise of

the Black opinion. ‘‘It does not face actuality to suggest that Illinois affords every

convicted person, financially competent or not, the opportunity to take an appeal,

and that it is not Illinois that is responsible for disparity in material circumstances.

Of course, a State need not equalize economic conditions. . . . But when a State

deems it wise and just that convictions be susceptible to review by an appellate

court, it cannot by force of its exactions draw a line which precludes convicted indigent persons, forsooth erroneously convicted, from securing such a review merely by

disabling them from bringing to the notice of an appellate tribunal errors of the trial

court which would upset the conviction were practical opportunity for review not

foreclosed.’’ Id. at 23. 28 372 U.S. 353 (1963). Justice Clark dissented, protesting the Court’s ‘‘new fetish for indigency,’’ id. at 358, 359, and Justices Harlan and Stewart dissented. Id.

at 360. 29 Id. at 357–58.

erty than on account of religion, race, or color.’’ While the State

was not obligated to provide an appeal at all, when it does so it

may not structure its system ‘‘in a way that discriminates against

some convicted defendants on account of their poverty.’’ The system’s fault was that it treated defendants with money differently

than it treated defendants without money. ‘‘There can be no equal

justice where the kind of trial a man gets depends on the amount

of money he has.’’ 27

The principle of Griffin was extended in Douglas v. California, 28 in which the court held to be a denial of due process and

equal protection a system whereby in the first appeal as of right

from a conviction counsel was appointed to represent indigents only

if the appellate court first examined the record and determined

that counsel would be of advantage to the appellant. ‘‘There is lacking that equality demanded by the Fourteenth Amendment where

the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without

merit, is forced to shift for himself.’’ 29

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.
1918 AMENDMENT 14—RIGHTS GUARANTEED

30Griffin v. Illinois, 351 U.S. 12, 34, 35 (1956). 31Douglas v. California, 372 U.S. 353, 361 (1963). 32 Id. at 363–67. 33 Evitts v. Lucey, 469 U.S. 387, 405 (1985) (holding that due process requires

that counsel provided for appeals as of right must be effective). 34 Rinaldi v. Yeager, 384 U.S. 305, 310 (1966). 35Draper v. Washington, 372 U.S. 487, 496 (1963). 36 Burns v. Ohio, 360 U.S. 252 (1959); Douglas v. Green, 363 U.S. 192 (1960).

‘‘[N]o economic burden attendant upon the exercise of a privilege

bears equally upon all, and in other circumstances the resulting

differentiation is not treated as an invidious classification by the

State, even though discrimination against ‘indigents’ by name

would be unconstitutional.’’ 30 As he protested in Douglas: ‘‘The

States, of course, are prohibited by the Equal Protection Clause

from discriminating between ‘rich’ and ‘poor’ as such in the formulation and application of their laws. But it is a far different thing

to suggest that this provision prevents the State from adopting a

law of general applicability that may affect the poor more harshly

than it does the rich, or, on the other hand, from making some effort to redress economic imbalances while not eliminating them entirely.’’ 31

Due process furnished the standard, Justice Harlan felt, for determining whether fundamental fairness had been denied. Where

an appeal was barred altogether by the imposition of a fee, the line

might have been crossed to unfairness, but on the whole he did not

see that a system which merely recognized differences between and

among economic classes, which as in Douglas made an effort to

ameliorate the fact of the differences by providing appellate scrutiny of cases of right, was a system which denied due process. 32

The Court has reiterated that both due process and equal protection concerns are implicated by restrictions on indigents’ exercise of the right of appeal. ‘‘In cases like Griffin and Douglas, due

process concerns were involved because the States involved had set

up a system of appeals as of right but had refused to offer each defendant a fair opportunity to obtain an adjudication on the merits

of his appeal. Equal protection concerns were involved because the

State treated a class of defendants—indigent ones—differently for

purposes of offering them a meaningful appeal.’’ 33

Criminal Procedure.—‘‘[I]t is now fundamental that, once established . . . avenues [of appellate review] must be kept free of

unreasoned distinctions that can only impede open and equal access to the courts.’’ 34 ‘‘In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as

that given appellants with funds. . . .’’ 35 No State may condition

the right to appeal 36 or the right to file a petition for habeas cor-
AMENDMENT 14—RIGHTS GUARANTEED 1919

37Smith v. Bennett, 365 U.S. 708 (1961). 38Griffin v. Illinois, 351 U.S. 12 (1956); Eskridge v. Washington State Bd. of

Prison Terms & Paroles, 357 U.S. 214 (1958) (unconstitutional to condition free

transcript upon trial judge’s certification that ‘‘justice will thereby be promoted’’);

Draper v. Washington, 372 U.S. 487 (1963) (unconstitutional to condition free transcript upon judge’s certification that the allegations of error were not ‘‘frivolous’’);

Lane v. Brown, 372 U.S. 477 (1963) (unconstitutional to deny free transcript upon

determination of public defender that appeal was in vain); Long v. District Court,

385 U.S. 192 (1966) (indigent prisoner entitled to free transcript of his habeas corpus proceeding for use on appeal of adverse decision therein); Gardner v. California,

393 U.S. 367 (1969) (on filing of new habeas corpus petition in appellate court upon

an adverse nonappealable habeas ruling in a lower court where transcript was needed, one must be provided an indigent prisoner). See also Rinaldi v. Yeager, 384 U.S.

305 (1966). For instances in which a transcript was held not to be needed, see Britt

v. North Carolina, 404 U.S. 266 (1971); United States v. MacCollom, 426 U.S. 317

(1976). 39Williams v. Oklahoma City, 395 U.S. 458 (1969); Mayer v. City of Chicago,

404 U.S. 189 (1971). 40Douglas v. California, 372 U.S. 353 (1963); Swenson v. Bosler, 386 U.S. 258

(1967); Anders v. California, 386 U.S. 738 (1967); Entsminger v. Iowa, 386 U.S. 748

(1967). A rule requiring a court-appointed appellate counsel to file a brief explaining

reasons why he concludes that a client’s appeal is frivolous does not violate the client’s right to assistance of counsel on appeal. McCoy v. Court of Appeals, 486 U.S.

429 (1988). The right is violated if the court allows counsel to withdraw by merely

certifying that the appeal is ‘‘meritless’’ without also filing an Anders brief supporting the certification. Penson v. Ohio, 488 U.S. 75 (1988). On the other hand, since

there is no constitutional right to counsel for indigent prisoners seeking

postconviction collateral relief, there is no requirement that withdrawal be justified

in an Anders brief if a state has provided counsel for postconviction proceedings.

Pennsylvania v. Finley, 481 U.S. 551 (1987) (counsel advised the court that there

were no arguable bases for collateral relief). 41 Evitts v. Lucey, 469 U.S. 387 (1985).

pus 37 or other form of postconviction relief upon the payment of a

docketing fee or some other type of fee when the petitioner has no

means to pay. Similarly, although the States are not required to

furnish full and complete transcripts of their trials to indigents

when exerpted versions or some other adequate substitute is available, if a transcript is necessary to adequate review of a conviction,

either on appeal or through procedures for postconviction relief, the

transcript must be provided to indigent defendants or to others unable to pay. 38 This right may not be denied by drawing a felonymisdemeanor distinction or by limiting it to those cases in which

confinement is the penalty. 39 A defendant’s right to counsel is to

be protected as well as the similar right of the defendant with

funds. 40 The right to counsel on appeal necessarily means the right

to effective assistance of counsel. 41

But, deciding a point left unresolved in Douglas, the Court

held that neither the due process nor the equal protection clause

required a State to furnish counsel to a convicted defendant seeking, after he had exhausted his appeals of right, to obtain discretionary review of his case in the State’s higher courts or in the

United States Supreme Court. Due process fairness does not re-
1920 AMENDMENT 14—RIGHTS GUARANTEED

42 Ross v. Moffitt, 417 U.S. 600 (1974). See also Fuller v. Oregon, 417 U.S. 40

(1974) (statute providing, under circumscribed conditions, that indigent defendant,

who receives state-compensated counsel and other assistance for his defense, who

is convicted, and who subsequently becomes able to repay costs, must reimburse

State for costs of his defense in no way operates to deny him assistance of counsel

or the equal protection of the laws). 43Murray 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). 44 Johnson v. Avery, 393 U.S. 483 (1969). 45 Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817

(1977). 46 399 U.S. 235 (1970). 47 401 U.S. 395 (1971). The Court has not yet treated a case in which the permissible sentence is ‘‘$30 or 30 days’’ or some similar form where either confinement

or a fine will satisfy the State’s penal policy.

quire that after an appeal has been provided the State must always

provide counsel to indigents at every stage. ‘‘Unfairness results

only if indigents are singled out by the State and denied meaningful access to that system because of their poverty.’’ That essentially

equal protection issue was decided against the defendant in the

context of an appellate system in which one appeal could be taken

as of right to an intermediate court, with counsel provided if necessary, and in which further appeals might be granted not primarily upon any conclusion about the result below but upon considerations of significant importance. 42 Not even death row inmates

have a constitutional right to an attorney to prepare a petition for

collateral relief in state court. 43

This right to legal assistance, especially in the context of the

constitutional right to the writ of habeas corpus, means that in the

absence of other adequate assistance, as through a functioning public defender system, a State may not deny prisoners legal assistance of another inmate 44 and it must make available certain minimal legal materials. 45

The Criminal Sentence.—A convicted defendant may not be

imprisoned solely because of his indigency. Williams v. Illinois 46

held that it was a denial of equal protection for a State to extend

the term of imprisonment of a convicted defendant beyond the statutory maximum provided because he was unable to pay the fine

which was also levied upon conviction. And Tate v. Short 47 held

that in situations in which no term of confinement is prescribed for

an offense but only a fine, the court may not jail persons who cannot pay the fine, unless it is impossible to develop an alternative,

such as installment payments or fines scaled to ability to pay. Willful refusal to pay may, however, be punished by confinement.
AMENDMENT 14—RIGHTS GUARANTEED 1921

48 383 U.S. 663, 666 (1966). The poll tax required to be paid as a condition of

voting was $1.50 annually. Justices Black, Harlan, and Stewart dissented. Id. at

670, 680. 49 Id. at 668. The Court observed that ‘‘the right to vote is too precious, too fundamental to be so burdened or conditioned.’’ Id. at 670. 50 405 U.S. 134 (1972). 51Lubin v. Panish, 415 U.S. 709 (1974). Note that the Court indicated that Bullock was decided on the basis of restrained review. Id. at 715.

52 Bearden v. Georgia, 461 U.S. 660 (1983).

Voting.—Treatment of indigency in a civil type of ‘‘fundamental interest’’ analysis came in Harper v. Virginia Board of Elections, 48 in which it was held that ‘‘a State violates the Equal Protection Clause . . . whenever it makes the affluence of the voter or

payment of any fee an electoral standard. Voter qualifications have

no relation to wealth nor to paying or not paying this or any other

tax.’’ The Court emphasized both the fundamental interest in the

right to vote and the suspect character of wealth classifications.

‘‘[W]e must remember that the interest of the State, when it comes

to voting, is limited to the power to fix qualifications. Wealth, like

race, creed, or color, is not germane to one’s ability to participate

intelligently in the electoral process. Lines drawn on the basis of

wealth or property, like those of race . . . are traditionally

disfavored.’’ 49

The two factors—classification in effect along wealth lines and

adverse effect upon the exercise of the franchise—were tied together in Bullock v. Carter 50 in which the setting of high filing fees

for certain offices was struck down upon analysis by a stricter

standard than the traditional equal protection standard but apparently a somewhat lesser standard than the compelling state interest test. The Court held that the high filing fees were not rationally

related to the State’s interest in allowing only serious candidates

on the ballot since some serious candidates could not pay the fees

while some frivolous candidates could and that the State could not

finance the costs of holding the elections from the fees when the

voters were thereby deprived of their opportunity to vote for candidates of their preferences.

Extending Bullock, the Court has held it impermissible for a

State to deny indigents, and presumably other persons unable to

pay filing fees, a place on the ballot for failure to pay filing fees,

however reasonable in the abstract the fees may be. A State must

provide such persons a reasonable alternative for getting on the

ballot. 51 Similarly, a sentencing court in revoking probation must

consider alternatives to incarceration if the reason for revocation is

the inability of the indigent to pay a fine or restitution. 52
1922 AMENDMENT 14—RIGHTS GUARANTEED

53 401 U.S. 371 (1971). 54 409 U.S. 434 (1973). 55 Id. at 443–46. The equal protection argument was rejected by utilizing the

traditional standard of review, bankruptcy legislation being placed in the area of economics and social welfare, and the use of fees to create a self-sustaining bankruptcy system being considered to be a rational basis. Dissenting, Justice Stewart

Access to Courts.—In Boddie v. Connecticut, 53 Justice Harlan

carried a majority of the Court with him in utilizing a due process

analysis to evaluate the constitutionality of a State’s filing fees in

divorce actions which a group of welfare assistance recipients attacked as preventing them from obtaining divorces. The Court

found that when the State monopolized the avenues to a pacific

settlement of a dispute over a fundamental matter such as marriage—only the State could terminate the marital status—then it

denied due process by inflexibly imposing fees which kept some

persons from using that avenue. Justice Harlan’s opinion averred

that a facially neutral law or policy which did in fact deprive an

individual of a protected right would be held invalid even though

as a general proposition its enforcement served a legitimate governmental interest. The opinion concluded with a cautioning observation that the case was not to be taken as establishing a general

right to access to the courts.

The Boddie opinion left unsettled whether a litigant’s interest

in judicial access to effect a pacific settlement of some dispute was

an interest entitled to some measure of constitutional protection as

a value of independent worth or whether a litigant must be seeking

to resolve a matter involving a fundamental interest in the only

forum in which any resolution was possible. Subsequent decisions

established that the latter answer was the choice of the Court. In

United States v. Kras, 54 the Court held that the imposition of filing

fees which blocked the access of an indigent to a discharge of his

debts in bankruptcy denied the indigent neither due process nor

equal protection. The marital relationship in Boddie was a fundamental interest, the Court said, and upon its dissolution depended associational interests of great importance; however, an interest in the elimination of the burden of debt and in obtaining a

new start in life, while important, did not rise to the same constitutional level as marriage. Moreover, a debtor’s access to relief in

bankruptcy had not been monopolized by the government to the

same degree as dissolution of a marriage; one may, ‘‘in theory, and

often in actuality,’’ manage to resolve the issue of his debts by

some other means, such as negotiation. While the alternatives in

many cases, such as Kras, seem barely likely of successful pursuit,

the Court seemed to be suggesting that absolute preclusion was a

necessary element before a right of access could be considered. 55
AMENDMENT 14—RIGHTS GUARANTEED 1923

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. 56Ortwein v. Schwab, 410 U.S. 656 (1973). The division was the same 5-to–4

that prevailed in Kras. See also Lindsey v. Normet, 405 U.S. 56 (1972). But cases

involving the Boddie principle do continue to arise. Little v. Streater, 452 U.S. 1

(1981) (in paternity suit that State required complainant to initiate, indigent defendant entitled to have State pay for essential blood grouping test); Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (recognizing general right of appointed counsel in indigent parents when State seeks to terminate parental status,

but using balancing test to determine that right was not present in this case). 57 411 U.S. 1 (1973). The opinion by Justice Powell was concurred in by the

Chief Justice and Justices Stewart, Blackmun, and Rehnquist. Justices Douglas,

Brennan, White, and Marshall dissented. Id. at 62, 63, 70. 58 Id. at 44–55. Applying the rational justification test, Justice White would

have found that the system did not use means rationally related to the end sought

to be achieved. Id. at 63.

Subsequently, on the initial appeal papers and without hearing

oral argument, the Court summarily upheld the application to

indigents of filing fees that in effect precluded them from appealing

decisions of a state administrative agency reducing or terminating

public assistance. 56

Educational Opportunity.—Making even clearer its approach in de facto wealth classification cases, the Court in San Antonio School District v. Rodriguez 57 rebuffed an intensive effort

with widespread support in lower court decisions to invalidate the

system prevalent in 49 of the 50 States of financing schools primarily out of property taxes, with the consequent effect that the

funds available to local school boards within each state were widely

divergent. Plaintiffs had sought to bring their case within the strict

scrutiny—compelling state interest doctrine of equal protection review by claiming that under the tax system there resulted a de

facto wealth classification that was ‘‘suspect’’ or that education was

a ‘‘fundamental’’ right and the disparity in educational financing

could not therefore be justified. The Court held, however, that

there was neither a suspect classification nor a fundamental interest involved, that the system must be judged by the traditional restrained standard, and that the system was rationally related to

the State’s interest in protecting and promoting local control of

education. 58

Important as the result of the case is, the doctrinal implications are far more important. The attempted denomination of

wealth as a suspect classification failed on two levels. First, the

Court noted that plaintiffs had not identified the ‘‘class of dis-
1924 AMENDMENT 14—RIGHTS GUARANTEED

59 Id. at 20. But see id. at 70, 117–24 (Justices Marshall and Douglas dissenting).60 Id. at 29–39. But see id. at 62 (Justice Brennan dissenting), 70, 110–17 (Justices Marshall and Douglas dissenting).

advantaged ‘poor’’’ in such a manner as to further their argument.

That is, the Court found that the existence of a class of poor persons, however defined, did not correlate with property-tax-poor districts; neither as an absolute nor as a relative consideration did it

appear that tax-poor districts contained greater numbers of poor

persons than did property-rich districts, except in random instances. Second, the Court held, there must be an absolute deprivation of some right or interest rather than merely a relative one before the deprivation because of inability to pay will bring into play

strict scrutiny. ‘‘The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared

two distinguishing characteristics: because of their impecunity they

were completely unable to pay for some desired benefit, and as a

consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.’’ 59 No such class had been

identified here and more importantly no one was being absolutely

denied an education; the argument was that it was a lower quality

education than that available in other districts. Even assuming

that to be the case, however, it did not create a suspect classification.

Education is an important value in our society, the Court

agreed, being essential to the effective exercise of freedom of expression and intelligent utilization of the right to vote. But a right

to education is not expressly protected by the Constitution, continued the Court, nor should it be implied simply because of its undoubted importance. The quality of education increases the effectiveness of speech or the ability to make informed electoral choice

but the judiciary is unable to determine what level of quality would

be sufficient. Moreover, the system under attack did not deny educational opportunity to any child, whatever the result in that case

might be; it was attacked for providing relative differences in

spending and those differences could not be correlated with differences in educational quality. 60

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
AMENDMENT 14—RIGHTS GUARANTEED 1925

61 Cf. Plyler v. Doe, 457 U.S. 202 (1982). The case is also noted for its proposition that there were only two equal protection standards of review, a proposition

even the author of the opinion has now abandoned. 62 487 U.S. 450 (1988). This was a 5–4 decision, with Justice O’Connor’s opinion

of the Court being joined by Chief Justice Rehnquist and Justices White, Scalia, and

Kennedy, and with Justices Marshall, Brennan, Stevens, and Blackmun dissenting. 63 487 U.S. at 462. The plaintiff child nonetheless continued to attend school,

so the requirement was reviewed as an additional burden but not a complete obstacle to her education. 64 432 U.S. 464 (1977). 65 Id. at 470–71. 66 Id. at 471–74. See also Harris v. McRae, 448 U.S. 297, 322–23 (1980). Total

deprivation was the theme of Boddie and was the basis of concurrences by Justices

Stewart and Powell in Zablocki v. Redhail, 434 U.S. 374, 391, 396 (1978), in that

the State imposed a condition indigents could not meet and made no exception for

them. The case also emphasized that Dandridge v. Williams, 397 U.S. 471 (1970),

imposed a rational basis standard in equal protection challenges to social welfare

cases. But see Califano v. Goldfarb, 430 U.S. 199 (1977), where the majority rejected

the dissent’s argument that this should always be the same.

barrier to the discovery or creation of additional fundamental interests. As the decisions reviewed earlier with respect to marriage and

the family reveal, that barrier has not held entirely firm, but within a range of interests, such as education, 61 the case remains

strongly viable. Relying on Rodriguez and distinguishing Plyler, the

Court in Kadrmas v. Dickinson Public Schools 62 rejected an indigent student’s equal protection challenge to a state statute permitting school districts to charge a fee for school bus service, in the

process rejecting arguments that either ‘‘strict’’ or ‘‘heightened’’

scrutiny is appropriate. Moreover, the Court concluded, there is no

constitutional obligation to provide bus transportation, or to provide it for free if it is provided at all. 63

Abortion.—Rodriguez furnished the principal analytical basis

for the Court’s subsequent decision in Maher v. Roe, 64 holding that

a State’s refusal to provide public assistance for abortions that

were not medically necessary under a program that subsidized all

medical expenses otherwise associated with pregnancy and childbirth did not deny to indigent pregnant women equal protection of

the laws. As in Rodriguez, it was held that the indigent are not a

suspect class. 65 Again, as in Rodriguez and in Kras, it was held

that when the State has not monopolized the avenues for relief and

the burden is only relative rather than absolute, a governmental

failure to offer assistance, while funding alternative actions, is not

undue governmental interference with a fundamental right. 66 Expansion of this area of the law of equal protection seems especially

limited.

SECTION 2. Representatives shall be apportioned among the

several States according to their respective numbers, counting
1926 AMENDMENT 14—RIGHTS GUARANTEED

67See generally J. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT

(1956). 68Saunders v. Wilkins, 152 F.2d 235 (4th Cir. 1945), cert. denied, 328 U.S. 870

(1946).

the whole number of persons in each State, excluding Indians

not taxed. But when the right to vote at any election for the

choice of electors for President and Vice President of the United

States, Representatives in Congress, the Executive and Judicial

officers of a State, or the members of the Legislature thereof,

is denied to any of the male inhabitants of such State, being

twenty-one years of age, and citizens of the United States, or

in any way abridged, except for participation in rebellion, or

other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens

shall bear to the whole number of male citizens twenty-one

years of age in such State.

APPORTIONMENT OF REPRESENTATION

With the abolition of slavery by the Thirteenth Amendment,

the African Americans formerly counted as three-fifths of persons

would be fully counted in the apportionment of seats in the House

of Representatives, increasing as well the electoral vote, there appeared the prospect that politically the readmitted Southern States

would gain the advantage in Congress when combined with Democrats from the North. Inasmuch as the South was adamantly opposed to African American suffrage, all the congressmen would be

elected by whites. Many wished to provide for the enfranchisement

of the African American and proposals to this effect were voted on

in both the House and the Senate, but only a few Northern States

permitted African Americans to vote and a series of referenda on

the question in Northern States revealed substantial white hostility to the proposal. Therefore, a compromise was worked out, to

effect a reduction in the representation of any State which discriminated against males in the franchise. 67

No serious effort was ever made in Congress to effectuate § 2,

and the only judicial attempt was rebuffed. 68 With subsequent constitutional amendments adopted and the utilization of federal coer-
AMENDMENT 14—RIGHTS GUARANTEED 1927

69The 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). 70 418 U.S. 24 (1974). Justices Marshall, Douglas, and Brennan dissented. Id.

at 56, 86.

cive powers to enfranchise persons, the section is little more than

an historical curiosity. 69

However, in Richardson v. Ramirez, 70 the Court relied upon

the implied approval of disqualification upon conviction of crime to

uphold a state law disqualifying convicted felons for the franchise

even after the service of their terms. It declined to assess the state

interests involved and to evaluate the necessity of the rule, holding

rather that because of § 2 the equal protection clause was simply

inapplicable.

SECTION 3. No Person shall be a Senator or Representative

in Congress, or elector of President and Vice President, or hold

any office, civil or military, under the United States, or under

any State, who, having previously taken an oath, as a member

of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United

States, shall have engaged in insurrection or rebellion against

the same, or given aid or comfort to the enemies thereof. But

congress may by a vote of two thirds of each House, remove

such disability.

SECTION 4. The validity of the public debt of the United

States, authorized by law, including debts incurred for payment

of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obliga-
1928 AMENDMENT 14—RIGHTS GUARANTEED

71 E.g., and notably, the Private Act of December 14, 1869, ch.1, 16 Stat. 607. 72 Ch. 193, 17 Stat. 142. 73 Act of June 6, 1898, ch. 389, 30 Stat. 432. Legislation by Congress providing

for removal was necessary to give effect to the prohibition of § 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).

74Perry v. United States, 294 U.S. 330, 354 (1935), in which the Court concluded that the Joint Resolution of June 5, 1933, insofar as it attempted to override

the gold-clause obligation in a Fourth Liberty Loan Gold Bond ‘‘went beyond the

congressional power.’’ On a Confederate bond problem, see Branch v. Haas, 16 F.

53 (C.C.M.D. Ala. 1883) (citing Hanauer v. Woodruff, 82 U.S. (15 Wall.) 439 (1873),

and Thorington v. Smith, 75 U.S. (8 Wall.) 1 (1869)). See also The Pietro

Campanella, 73 F. Supp. 18 (D. Md. 1947).

tion incurred in aid of insurrection or rebellion against the

United States, or any claim for the loss or emancipation of any

slave; but all such debts, obligations and claims shall be held

illegal and void.

DISQUALIFICATION AND PUBLIC DEBT

The right to remove disabilities imposed by this section was exercised by Congress at different times on behalf of enumerated individuals. 71 In 1872, the disabilities were removed, by a blanket

act, from all persons ‘‘except Senators and Representatives of the

Thirty-sixth and Thirty-seventh Congresses, officers in the judicial,

military and naval service of the United States, heads of departments, and foreign ministers of the United States.’’ 72 Twenty-six

years later, Congress enacted that ‘‘the disability imposed by section 3 . . . incurred heretofore, is hereby removed.’’ 73

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. 74

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
AMENDMENT 14—RIGHTS GUARANTEED 1929

75 Civil Rights Act of 1866, ch. 31, 14 Stat. 27; the Enforcement Act of 1870,

ch. 114, 16 Stat. 140; Act of February 28, 1871, ch. 99, 16 Stat. 433; the Ku Klux

Klan Act of 1871, ch. 22, 17 Stat. 13; Civil Rights Act of 1875; 18 Stat. 335. The

modern provisions surviving of these statutes are 18 U.S.C. §§ 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. 76See generally R. CARR, FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR A

SWORD (1947). 77For 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). 78The 1957 and 1960 Acts primarily concerned voting; the public accommodations provisions of the 1964 Act and the housing provisions of the 1968 Act were

premised on the commerce power. 79 United States v. Guest, 383 U.S. 745 (1966); Katzenbach v. Morgan, 384 U.S.

641 (1966). The development of congressional enforcement powers in these cases

was paralleled by a similar expansion of the enforcement powers of Congress with

regard to the Thirteenth Amendment, Jones v. Alfred H. Mayer Co., 392 U.S. 409

(1968), supra, pp. 1554–55, and the Fifteenth Amendment. South Carolina v. Katzenbach, 383 U.S. 301 (1966), infra, pp. 1946–50. 80 82 Stat. 73, 18 U.S.C. § 245. The statute has yet to receive its constitutional

testing. 81On the ‘‘state action’’ doctrine in the context of the direct application of 1 of

the Fourteenth Amendment, see supra, pp. 1786–1802.

Fifteenth Amendments, enacted seven statutes designed in a variety of ways to implement the provisions of these Amendments. 75

Several of these laws were general civil rights statutes which

broadly attacked racial and other discrimination on the part of private individuals and groups as well as by the States, but the Supreme Court declared unconstitutional or rendered ineffective practically all of these laws over the course of several years. 76 In the

end, Reconstruction was abandoned and with rare exceptions no

cases were brought under the remaining statutes until fairly recently. 77 Beginning with the Civil Rights Act of 1957, however,

Congress generally acted pursuant to its powers under the commerce clause 78 until Supreme Court decisions indicated an expansive concept of congressional power under the Civil War Amendments, 79 which culminated in broad provisions against private interference with civil rights in the 1968 legislation. 80 The story of

these years is largely an account of the ‘‘state action’’ doctrine in

terms of its limitation on congressional powers; 81 lately, it is the

still-unfolding history of the lessening of the doctrine combined

with a judicial vesting of discretion in Congress to reinterpret the

scope and content of the rights guaranteed in these three constitutional amendments.

State Action.—In enforcing by appropriate legislation the

Fourteenth Amendment guarantees against state denials, Congress
1930 AMENDMENT 14—RIGHTS GUARANTEED

82Section 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). 83 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). 84 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). 85 Ex parte Virginia, 100 U.S. 339 (1880). 86 United States v. Price, 383 U.S. 787 (1966). 87 Both 18 U.S.C. § 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). 88 E.g., the problem of ‘‘specific intent’’ in Screws v. United States, 325 U.S. 91

(1945), and Williams v. United States, 341 U.S. 97 (1951), and the problem of what

‘‘right or privilege’’ is ‘‘secured’’ to a person by the Constitution and laws of the

United States, which divided the Court in United States v. Williams, 341 U.S. 70

(1951), and which was resolved in United States v. Price, 383 U.S. 787 (1966). 89 18 Stat. 335, §§ 1, 2. 90 109 U.S. 3 (1883). The Court also rejected the Thirteenth Amendment foundation for the statute, a foundation revived by Jones v. Alfred H. Mayer Co., 392 U.S.

409 (1968).

has the discretion to adopt remedial measures, such as authorizing

persons being denied their civil rights in state courts to remove

their cases to federal courts, 82 and to provide criminal 83 and

civil 84 liability for state officials and agents 85 or persons associated

with them 86 who violate protected rights. These statutory measures designed to eliminate discrimination ‘‘under color of law’’ 87

present no problems of constitutional foundation, although there

may well be other problems of application. 88 But the Reconstruction Congresses did not stop with statutory implementation of

rights guaranteed against state infringement, moving as well

against private interference.

Thus, in the Civil Rights Act of 1875 89 Congress had proscribed private racial discrimination in the admission to and use of

inns, public conveyances, theaters, and other places of public

amusement. The Civil Rights Cases 90 found this enactment to be

beyond Congress’ power to enforce the Fourteenth Amendment. It

was observed that § 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
AMENDMENT 14—RIGHTS GUARANTEED 1931

91 109 U.S. at 11. Justice Harlan’s dissent reasoned that Congress had the

power to protect rights secured by the Fourteenth Amendment against invasion by

both state and private action, but also viewed places of public accommodation as

serving a quasi-public function which satisfied the state action requirement in any

event. Id. at 46–48, 56–57. 92 92 U.S. 542 (1876). The action was pursuant to § 6 of the 1870 Enforcement

Act, ch. 114, 16 Stat. 140, the predecessor of 18 U.S.C. § 241. 93 106 U.S. 629 (1883). The case held unconstitutional a provision of § 2 of the

1871 Act, ch. 22, 17 Stat. 13. 94See 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). 95 United States v. Cruikshank, 92 U.S. 542, 552–53, 556 (1876). The rights

which the Court assumed the United States could protect against private interference were the right to petition Congress for a redress of grievances and the right

to vote free of interference on racial grounds in a federal election. 96 Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Classic, 313 U.S.

299 (1941). 97Logan v. United States, 144 U.S. 263 (1892). 98 In re Quarles, 158 U.S. 532 (1895). See also United States v. Waddell, 112

U.S. 76 (1884) (right to homestead). 99 United States v. Guest, 383 U.S. 745 (1966); Griffin v. Breckenridge, 403 U.S.

88 (1971). 100 341 U.S. 70 (1951).

municipal law for the regulation of private rights; but to provide

modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment.’’ 91 The

holding in this case had already been preceded by United States v.

Cruikshank 92 and by United States v. Harris 93 in which the Federal Government had prosecuted individuals for killing and injuring African Americans. The Amendment did not increase the power

of the Federal Government vis-a-vis individuals, the Court held,

only with regard to the States themselves. 94

Cruikshank did, however, recognize a small category of federal

rights which Congress could protect against private deprivation,

rights which the Court viewed as deriving particularly from one’s

status as a citizen of the United States and which Congress had

a general police power to protect. 95 These rights included the right

to vote in federal elections, general and primary, 96 the right to federal protection while in the custody of federal officers, 97 and the

right to inform federal officials of violations of federal law. 98 The

right of interstate travel is a basic right derived from the Federal

Constitution which Congress may protect. 99 In United States v.

Williams, 100 in the context of state action, the Court divided fourto-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 inter-
1932 AMENDMENT 14—RIGHTS GUARANTEED

101 383 U.S. 787 (1966) (due process clause). 102 383 U.S. 745 (1966) (equal protection clause). 103 Justice Brennan’s opinion, id. at 774, was joined by Chief Justice Warren

and Justice Douglas. His statement that ‘‘[a] majority of the members of the Court

expresses the view today that § 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. 104 Id. at 782.

ference by private individuals.’’ This issue was again reached in

United States v. Price 101 and United States v. Guest, 102 again in

the context of state action, in which the Court concluded that the

statute included within its scope rights guaranteed by the due

process and equal protection clauses.

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. 103 ‘‘Although the Fourteenth Amendment itself . . . ‘speaks to the State or to those acting under the

color of its authority,’ legislation protecting rights created by that

Amendment, such as the right to equal utilization of state facilities,

need not be confined to punishing conspiracies in which state officers participate. Rather, § 5 authorizes Congress to make laws that

it concludes are reasonably necessary to protect a right created by

and arising under that Amendment; and Congress is thus fully empowered to determine that punishment of private conspiracies

interfering with the exercise of such a right is necessary to its full

protection.’’ 104 The Justice throughout the opinion refers to ‘‘Fourteenth Amendment rights,’’ by which he meant rights which, in the

words of 18 U.S.C. § 241, are ‘‘secured . . . by the Constitution,’’

i.e., by the Fourteenth Amendment through prohibitory words addressed only to governmental officers. Thus, the equal protection

clause commands that all ‘‘public facilities owned or operated by or

on behalf of the State,’’ be available equally to all persons; that ac-
AMENDMENT 14—RIGHTS GUARANTEED 1933

105 Id. at 777–79, 784. 106The civil statute paralleling the criminal statute held unconstitutional in

United States v. Harris, 106 U.S. 629 (1883), is 42 U.S.C. § 1985(3), similarly derived from § 2 of the 1871 Act, 17 Stat. 13, and it too lacks a ‘‘color of law’’ requirement. This provision was read into it in Collins v. Hardyman, 341 U.S. 651 (1951),

to avoid what the Court then saw as a substantial constitutional problem. In Griffin

v. Breckenridge, 403 U.S. 88 (1971), ‘‘color of law’’ was read out of the statute. While

it might be ‘‘difficult to conceive of what might constitute a deprivation of the equal

protection of the laws by private persons . . . there is nothing inherent in the

phrase that requires the action working the deprivation to come from the State.’’

Id. at 97. What the language actually required, said the unanimous Court, was an

‘‘intent to deprive of equal protection, or equal privileges and immunities, means

that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words,

must aim at a deprivation of the equal enjoyment of rights secured by the law to

all.’’ Id. at 102. As so construed, the statute was held constitutional as applied in

the complaint before the Court on the basis of the Thirteenth Amendment and the

right to travel; there was no necessity therefore, to consider Congress’ § 5 powers.

Id. at 107.

The lower courts are quite divided with respect to what constitutes a nonrace,

class-based animus within the requisite for § 1985(3) coverage and whether a private conspiracy may be reached. See, e.g., Action v. Gannon, 450 F.2d 1227 (8th Cir.

1971); Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972); Great American Fed.

S. & L. Ass’n v. Novotny, 584 F.2d 1235 (3d Cir. 1978) (en banc), rev’d, 442 U.S.

366 (1979); Scott v. Moore, 680 F.2d 979 (5th Cir. 1982) (en banc). The Supreme

Court’s Novotny decision was based solely on statutory interpretation and avoided

both questions, although both Justices Powell and Stevens would require a showing

of state action. 442 U.S. at 378, 381 (concurring). 107 109 U.S. 3, 13–14 (1883).

cess 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. 105

It is not clear, following changes in Court personnel and in the

absence of definitive adjudication, whether this expansion of Congress’ power still commands a majority of the Court. 106 If the

Court adheres to the expansion, it is not clear what the limits and

potentialities of the expansion are, whether it is only with regard

to ‘‘state facilities’’ that Congress may reach private interfering

conduct, and what ‘‘rights’’ are reasonably and properly encompassed within the concept of ‘‘Fourteenth Amendment rights.’’

Congressional Definition of Fourteenth Amendment

Rights.—In the Civil Rights Cases, 107 the Court observed that

‘‘the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but

corrective legislation,’’ that is, laws to counteract and overrule

those state laws which § 1 forbade the States to adopt. And the

Court was quite clear that under its responsibilities of judicial re-
1934 AMENDMENT 14—RIGHTS GUARANTEED

108 Cf. Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803). 109 383 U.S. 745, 783 and n.7 (1966) (concurring and dissenting). 110 384 U.S. 641 (1966). Besides the ground of decision discussed here, Morgan

also advanced an alternative ground for upholding the statute. That is, Congress

might have overridden the state law not because the law itself violated the equal

protection clause but because being without the vote meant the class of persons was

subject to discriminatory state and local treatment and giving these people the ballot would afford a means of correcting that situation. The statute therefore was an

appropriate means to enforce the equal protection clause under ‘‘necessary and proper’’ standards. Id. at 652–653. A similar ‘‘necessary and proper’’ approach underlay

South Carolina v. Katzenbach, 383 U.S. 301 (1966), under the Fifteenth Amendment’s enforcement clause. 111 79 Stat. 439, 42 U.S.C. § 1973b(e). 112 384 U.S. at 648. 113Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959).

view, 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. 108 But in United States v.

Guest, 109 Justice Brennan protested that this view ‘‘attributes a far

too limited objective to the Amendment’s sponsors, that in fact ‘‘the

primary purpose of the Amendment was to augment the power of

Congress, not the judiciary.’’

In Katzenbach v. Morgan, 110 Justice Brennan, this time speaking for the Court, in effect overrode the limiting view and posited

a doctrine by which Congress was to define the substance of what

the legislation enacted pursuant to § 5 must be appropriate to. That

is, in upholding the constitutionality of a provision of the Voting

Rights Act of 1965 111 barring the application of English literacy

requirements to a certain class of voters, the Court rejected a state

argument ‘‘that an exercise of congressional power under § 5 . . .

that prohibits the enforcement of a state law can only be sustained

if the judicial branch determines that the state law is prohibited

by the provisions of the Amendment that Congress sought to enforce.’’ 112 Inasmuch as the Court had previously upheld an English

literacy requirement under equal protection challenge, 113 acceptance of the argument would have doomed the federal law. But, said

Justice Brennan, Congress itself might have questioned the justifications put forward by the State in defense of its law and might

have concluded that instead of being supported by acceptable reasons the requirements were unrelated to those justifications and

discriminatory in intent and effect. The Court would not evaluate

the competing considerations which might have led Congress to its

conclusion; since Congress ‘‘brought a specially informed legislative

competence’’ to an appraisal of voting requirements, ‘‘it was Congress’ prerogative to weigh’’ the considerations and the Court would

sustain the conclusion if ‘‘we perceive a basis upon which Congress
AMENDMENT 14—RIGHTS GUARANTEED 1935

114Katzenbach v. Morgan, 384 U.S. 641, 653–56 (1966). 115 Id. at 668. Justice Stewart joined this dissent. 116 Id. at 651 n.10. Justice O’Connor for the Court quoted and reiterated Justice

Brennan’s language in Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 731–

33 (1982). 117 82 Stat. 73, 18 U.S.C. § 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. 118Title 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. 119Titles II and III of the Voting Rights Act Amendments of 1970, 84 Stat. 316,

42 U.S.C. §§ 1973aa–1, 1973bb. 120Oregon v. Mitchell, 400 U.S. 112 (1970). 121 Id. at 229, 278–81 (Justices Brennan, White, and Marshall), 135, 141–44

(Justice Douglas). 122 Id. at 152, 204–09 (Justice Harlan).

might predicate a judgment’’ that the requirements constituted invidious discrimination. 114

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.’’ 115 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

guarantees.’’ 116 Congress responded, however, in both fashions. On

the one hand, in the 1968 Civil Rights Act it relied on Morgan in

expanding federal powers to deal with private violence that is racially motivated, and to some degree in outlawing most private

housing discrimination; 117 on the other hand, it enacted provisions

of law purporting to overrule the Court’s expansion of the self-incrimination and right-to-counsel clauses of the Bill of Rights, expressly invoking Morgan. 118

Congress’ power under Morgan returned to the Court’s consideration when several States challenged congressional legislation 119

lowering the voting age in all elections to 18 and prescribing residency and absentee voting requirements for the conduct of presidential elections. In upholding the latter provision and in dividing

over the former, the Court revealed that Morgan’s vitality was in

some considerable doubt, at least with regard to the reach which

many observers had previously seen. 120 Four Justices accepted

Morgan in full, 121 while one Justice rejected it totally 122 and an-
1936 AMENDMENT 14—RIGHTS GUARANTEED

123 Id. at 119, 126–31 (Justice Black).

124The age reduction provision could be sustained ‘‘only if Congress has the

power not only to provide the means of eradicating situations that amount to a violation of the Equal Protection Clause, but also to determine as a matter of substantive constitutional law what situations fall within the ambit of the clause, and

what state interests are ‘compelling.’’’ Id. at 296 (Justices Stewart and Blackmun

and Chief Justice Burger). In their view, Congress did not have that power and

Morgan did not confer it. But in voting to uphold the residency and absentee provision, the Justices concluded that ‘‘Congress could rationally conclude that the imposition of durational residency requirements unreasonably burdens and sanctions the

privilege of taking up residence in another State’’ without reaching an independent

determination of their own that the requirements did in fact have that effect. Id.

at 286.

125See City of Rome v. United States, 446 U.S. 156, 173–83 (1980), under the

Fifteenth Amendment. Infra, pp. 1948–50. See also Fullilove v. Klutznick, 448 U.S.

448, 476–78 (1980) (plurality opinion by Chief Justice Burger), and id. at 500–02

(Justice Powell concurring).

126The 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.

127See 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).

other would have limited it to racial cases. 123 The other three Justices seemingly restricted Morgan to its alternate rationale in passing on the age reduction provision but the manner in which they

dealt with the residency and absentee voting provision afforded

Congress some degree of discretion in making substantive decisions

about what state action is discriminatory above and beyond the judicial view of the matter. 124

More recent decisions read broadly Congress’ power to make

determinations that appear to be substantive decisions with respect

to constitutional violations. 125 Acting under both the Fourteenth

and Fifteenth Amendments, Congress has acted to reach state electoral practices that ‘‘result’’ in diluting the voting power of minorities, although the Court apparently requires that it be shown that

electoral procedures must have been created or maintained with a

discriminatory animus before they may be invalidated under the

two Amendments. 126 Moreover, movements have been initiated in

Congress by opponents of certain of the Court’s decisions, notably

the abortion rulings, to utilize § 5 powers to curtail the rights the

Court has derived from the due process clause and other provisions

of the Constitution. 127