FOURTEENTH AMENDMENT

RIGHTS GUARANTEED

CONTENTS

Page

Section 1. Rights Guaranteed ................................................................................................... 1829

The Fourteenth Amendment and States’ Rights ............................................................. 1829

Citizens of the United States ............................................................................................ 1829

Privileges or Immunities ................................................................................................... 1832

Due Process of Law ............................................................................................................ 1836

Generally ...................................................................................................................... 1836

Definitions .................................................................................................................... 1837

“Person” ................................................................................................................. 1837

“Property” and Police Power ............................................................................... 1839

“Liberty” ................................................................................................................ 1840

The Rise and Fall of Economic Substantive Due Process: Overview .................... 1841

Regulation of Labor Conditions ................................................................................. 1847

Liberty of Contract ............................................................................................... 1847

Laws Regulating Working Conditions and Wages ............................................ 1852

Workers’ Compensation Laws ............................................................................. 1854

Collective Bargaining ........................................................................................... 1855

Regulation of Business Enterprises: Price Controls ................................................ 1858

Types of Businesses That May be Regulated .................................................... 1858

Substantive Review of Price Controls ................................................................ 1861

Early Limitations on Review .............................................................................. 1863

History of the Valuation Question ...................................................................... 1866

Regulation of Public Utilities and Common Carriers .............................................. 1869

In General ............................................................................................................. 1869

Compulsory Expenditures: Grade Crossings, and the Like ............................. 1870

Compellable Services ........................................................................................... 1871

Imposition of Statutory Liabilities and Penalties Upon Common Carriers ... 1873

Regulation of Businesses, Corporations, Professions, and Trades .......................... 1874

Generally ............................................................................................................... 1874

Laws Prohibiting Trusts, Restraint of Trade or Fraud .................................... 1875

Banking, Wage Assignments, and Garnishment ............................................... 1878

Insurance .............................................................................................................. 1879

Miscellaneous Businesses and Professions ........................................................ 1881

Protection of State Resources ..................................................................................... 1883

Oil and Gas ........................................................................................................... 1883

Protection of Property and Agricultural Crops .................................................. 1884

Water, Fish, and Game ........................................................................................ 1885

Ownership of Real Property: Rights and Limitations ............................................. 1887

Zoning and Similar Actions ................................................................................. 1887

Estates, Succession, Abandoned Property .......................................................... 1889

Health, Safety, and Morals ......................................................................................... 1891

Health ................................................................................................................... 1891

Safety .................................................................................................................... 1892

Morality ................................................................................................................. 1894

1823
Section 1. Rights Guaranteed—Continued

Due Process of Law—Continued

Vested and Remedial Rights ...................................................................................... 1895

State Control over Local Units of Government ........................................................ 1896

Taxing Power ............................................................................................................... 1896

Generally ............................................................................................................... 1896

Jurisdiction to Tax ...................................................................................................... 1900

Generally ............................................................................................................... 1900

Real Property ........................................................................................................ 1901

Tangible Personalty ............................................................................................. 1901

Intangible Personalty ........................................................................................... 1903

Transfer (Inheritance, Estate, Gift) Taxes ......................................................... 1907

Corporate Privilege Taxes ................................................................................... 1911

Individual Income Taxes ..................................................................................... 1912

Corporate Income Taxes: Foreign Corporations ................................................ 1912

Insurance Company Taxes .................................................................................. 1913

Procedure in Taxation ................................................................................................. 1914

Generally ............................................................................................................... 1914

Notice and Hearing in Relation to Taxes ........................................................... 1915

Notice and Hearing in Relation to Assessments ............................................... 1916

Collection of Taxes ............................................................................................... 1918

Sufficiency and Manner of Giving Notice .......................................................... 1919

Sufficiency of Remedy .......................................................................................... 1920

Laches ................................................................................................................... 1921

Eminent Domain ......................................................................................................... 1921

Fundamental Rights (Noneconomic Substantive Due Process) ............................... 1921

Determining Noneconomic Substantive Due Process Rights ........................... 1922

Abortion ................................................................................................................ 1927

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

Autonomy? ......................................................................................................... 1942

Family Relationships ........................................................................................... 1951

Liberty Interests of People with Mental Disabilities: Civil Commitment and

Treatment .......................................................................................................... 1954

“Right to Die” ....................................................................................................... 1957

Procedural Due Process: Civil ........................................................................................... 1959

Generally ...................................................................................................................... 1959

Relevance of Historical Use ................................................................................ 1960

Non-Judicial Proceedings .................................................................................... 1960

The Requirements of Due Process ...................................................................... 1961

The Procedure That Is Due Process .......................................................................... 1968

The Interests Protected: “Life, Liberty and Property” ...................................... 1968

The Property Interest .......................................................................................... 1968

The Liberty Interest ............................................................................................ 1974

Proceedings in Which Procedural Due Process Need Not Be Observed ......... 1977

When Process Is Due ........................................................................................... 1979

Jurisdiction .................................................................................................................. 1985

Generally ............................................................................................................... 1985

In Personam Proceedings Against Individuals .................................................. 1987

Suing Out-of-State (Foreign) Corporations ........................................................ 1990

Actions In Rem: Proceeding Against Property .................................................. 1998

Quasi in Rem: Attachment Proceedings ............................................................. 2000

Actions in Rem: Estates, Trusts, Corporations ................................................. 2002

Notice: Service of Process .................................................................................... 2004

1824 AMENDMENT 14—RIGHTS GUARANTEED
Section 1. Rights Guaranteed—Continued

Procedural Due Process: Civil—Continued

Power of the States to Regulate Procedure .............................................................. 2005

Generally ............................................................................................................... 2005

Commencement of Actions .................................................................................. 2006

Defenses ................................................................................................................ 2007

Costs, Damages, and Penalties ........................................................................... 2008

Statutes of Limitation ......................................................................................... 2010

Burden of Proof and Presumptions .................................................................... 2011

Trials and Appeals ............................................................................................... 2015

Procedural Due Process—Criminal ................................................................................... 2016

Generally: The Principle of Fundamental Fairness ................................................. 2016

The Elements of Due Process ..................................................................................... 2017

Initiation of the Prosecution ............................................................................... 2017

Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine ...................... 2018

Entrapment ........................................................................................................... 2024

Criminal Identification Process ........................................................................... 2025

Fair Trial ............................................................................................................... 2027

Prosecutorial Misconduct ..................................................................................... 2031

Proof, Burden of Proof, and Presumptions ........................................................ 2035

The Problem of the Incompetent or Insane Defendant .................................... 2041

Guilty Pleas .......................................................................................................... 2044

Sentencing ............................................................................................................ 2046

Corrective Process: Appeals and Other Remedies ............................................. 2049

Rights of Prisoners ............................................................................................... 2051

Probation and Parole ........................................................................................... 2057

The Problem of the Juvenile Offender ............................................................... 2060

The Problem of Civil Commitment ..................................................................... 2063

Equal Protection of the Laws ............................................................................................ 2065

Scope and Application ................................................................................................. 2065

State Action .......................................................................................................... 2065

“Person” ................................................................................................................. 2082

“Within Its Jurisdiction” ...................................................................................... 2083

Equal Protection: Judging Classifications by Law ................................................... 2084

The Traditional Standard: Restrained Review .................................................. 2084

The New Standards: Active Review ................................................................... 2089

Testing Facially Neutral Classifications Which Impact on Minorities ................... 2096

Traditional Equal Protection: Economic Regulation and Related Exercises of the Police Power ........................................................................................................................ 2102

Taxation ........................................................................................................................ 2102

Classification for Purpose of Taxation ................................................................ 2102

Foreign Corporations and Nonresidents ............................................................ 2105

Income Taxes ........................................................................................................ 2106

Inheritance Taxes ................................................................................................. 2107

Motor Vehicle Taxes ............................................................................................. 2107

Property Taxes ...................................................................................................... 2108

Special Assessment .............................................................................................. 2110

Police Power Regulation ............................................................................................. 2110

Classification ........................................................................................................ 2110

Other Business and Employment Relations ............................................................. 2115

Labor Relations .................................................................................................... 2115

Monopolies and Unfair Trade Practices ............................................................. 2116

Administrative Discretion ................................................................................... 2117

AMENDMENT 14—RIGHTS GUARANTEED 1825
Section 1. Rights Guaranteed—Continued

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

Social Welfare ....................................................................................................... 2118

Punishment of Crime ........................................................................................... 2119

Equal Protection and Race ................................................................................................ 2121

Overview ...................................................................................................................... 2121

Education ..................................................................................................................... 2122

Development and Application of “Separate But Equal” ................................... 2122

Brown v. Board of Education .............................................................................. 2123

Brown’s Aftermath ............................................................................................... 2124

Implementation of School Desegregation ........................................................... 2126

Northern Schools: Inter- and Intradistrict Desegregation ............................... 2128

Efforts to Curb Busing and Other Desegregation Remedies ........................... 2133

Termination of Court Supervision ...................................................................... 2136

Juries ............................................................................................................................ 2137

Capital Punishment .................................................................................................... 2141

Housing ........................................................................................................................ 2141

Other Areas of Discrimination ................................................................................... 2142

Transportation ...................................................................................................... 2142

Public Facilities .................................................................................................... 2143

Marriage ................................................................................................................ 2143

Judicial System .................................................................................................... 2144

Public Designation ............................................................................................... 2144

Public Accommodations ....................................................................................... 2144

Elections .............................................................................................................. 2144

“Affirmative Action”: Remedial Use of Racial Classifications .................................. 2145

The New Equal Protection ................................................................................................. 2157

Classifications Meriting Close Scrutiny .................................................................... 2157

Alienage and Nationality ..................................................................................... 2157

Sex ......................................................................................................................... 2163

Illegitimacy .................................................................................................................. 2176

Fundamental Interests: The Political Process .......................................................... 2181

Voter Qualifications .............................................................................................. 2183

Access to the Ballot .............................................................................................. 2187

Apportionment and Districting ........................................................................... 2191

Counting and Weighing of Votes ......................................................................... 2204

The Right to Travel ..................................................................................................... 2205

Durational Residency Requirements .................................................................. 2205

Marriage and Familial Relations ............................................................................... 2209

Sexual Orientation ...................................................................................................... 2211

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

Protection ................................................................................................................. 2213

Generally ............................................................................................................... 2213

Criminal Procedure .............................................................................................. 2216

The Criminal Sentence ........................................................................................ 2217

Voting and Ballot Access ..................................................................................... 2218

Access to Courts ................................................................................................... 2220

Educational Opportunity ..................................................................................... 2222

Abortion ................................................................................................................ 2224

Section 2. Apportionment of Representation ........................................................................... 2224

Apportionment of Representation ..................................................................................... 2225

Sections 3 and 4. Disqualification and Public Debt ............................................................... 2226

1826 AMENDMENT 14—RIGHTS GUARANTEED
Sections 3 and 4. Disqualification and Public Debt—Continued

Disqualification and Public Debt ...................................................................................... 2226

Section 5. Enforcement ............................................................................................................. 2227

Enforcement ........................................................................................................................ 2227

Generally ...................................................................................................................... 2227

State Action ................................................................................................................. 2228

Congressional Definition of Fourteenth Amendment Rights ................................... 2232

AMENDMENT 14—RIGHTS GUARANTEED 1827

RIGHTS GUARANTEED

FOURTEENTH AMENDMENT

SECTION 1. All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the United

States and the State wherein they reside. No State shall make

or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

THE FOURTEENTH AMENDMENT AND STATES’

RIGHTS

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

had been fought over issues of states’ rights, particularly the right

to control the institution of slavery.1 In the wake of the war, the

Congress submitted, and the states ratified the Thirteenth Amendment (making slavery illegal), the Fourteenth Amendment (defining and granting broad rights of national citizenship), and the Fifteenth Amendment (forbidding racial discrimination in elections).

The Fourteenth Amendment was the most controversial and farreaching of these three “Reconstruction Amendments.”

CITIZENS OF THE UNITED STATES

The citizenship provisions of the Fourteenth Amendment may

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

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

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

case,2 however, Chief Justice Taney, writing for the Court, ruled that

1 “Since the 1950s most professional historians have come to agree with Lincoln’s assertion that slavery ‘was, somehow, the cause of the war.’ ” James M. McPherson,

Southern Comfort, THE NEW YORK REVIEW OF BOOKS (Apr. 12, 2001), quoting Lincoln’s

second inaugural address.

2 Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). The controversy, political as

well as constitutional, that this case stirred and still stirs is exemplified and analyzed in the material collected in S. KUTLER, THE DRED SCOTT DECISION: LAW OR POLI1829
this rule did not apply to freed slaves. The Court held that United

States citizenship was enjoyed by only two classes of people: (1) white

persons born in the United States as descendants of “persons, who

were at the time of the adoption of the Constitution recognised 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.3 Freed slaves fell

into neither of these categories.

The Court further held that, although a state could confer state

citizenship upon whomever it chose, it could not make the recipient of such status a citizen of the United States. Thus, the “Negro,” as an enslaved race, was ineligible to attain United States citizenship, either from a state or by virtue of birth in the United States.

Even a free man descended from a Negro residing as a free man in

one of the states at the date of ratification of the Constitution was

held ineligible for citizenship.4 Congress subsequently repudiated

this concept of citizenship, first in section 1 5 of the Civil Rights Act

of 1866 6 and then in section 1 of the Fourteenth Amendment. In

doing so, Congress set aside the Dred Scott holding, and restored

the traditional precepts of citizenship by birth.7

Based on the first sentence of section 1,8 the Court has held

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

ineligible to be naturalized themselves is nevertheless a citizen of

the United States entitled to all the rights and privileges of citizenTICS? (1967). See also DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN

AMERICAN LAW AND POLITICS (1978); M. GRABER, DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL (2006); EARL M. MALTZ, DRED SCOTT AND THE POLITICS OF SLAVERY (2007); Symposium, 150th Anniversary of the Dred Scott Decision, 82 CHI.-KENT L. REV. 1–455

(2007).

3 60 U.S. (19 How.) at 406, 418.

4 60 U.S. (19 How.) at 404–06, 417–18, 419–20 (1857).

5 The proposed amendment as it passed the House contained no such provision,

and it was decided in the Senate to include language like that finally adopted. CONG.

GLOBE, 39th Cong., 1st Sess. 2560, 2768–69, 2869 (1866). The sponsor of the language said: “This amendment which I have offered is simply declaratory of what I

regard as the law of the land already, that every person born within the limits of

the United States, and subject to their jurisdiction, is . . . a citizen of the United

States.” Id. at 2890. The legislative history is discussed at some length in Afroyim

v. Rusk, 387 U.S. 253, 282–86 (1967) (Justice Harlan dissenting).

6 “That all persons born in the United States and not subject to any foreign

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

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

condition of slavery or involuntary servitude . . . shall have the same right[s] . . . .”

Ch. 31, 14 Stat. 27.

7 United States v. Wong Kim Ark, 169 U.S. 649, 688 (1898).

8 “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

1830 AMENDMENT 14—RIGHTS GUARANTEED
ship.9 The requirement that a person be “subject to the jurisdiction

thereof,” however, excludes its application to children born of diplomatic representatives of a foreign state, children born of alien enemies in hostile occupation,10 or children of members of Indian tribes

subject to tribal laws.11 In addition, the citizenship of children born

on vessels in United States territorial waters or on the high seas

has generally been held by the lower courts to be determined by

the citizenship of the parents.12 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.13

In Afroyim v. Rusk,

14 a divided Court extended the force of this

first sentence beyond prior holdings, ruling that it withdrew from

the government of the United States the power to expatriate United

States citizens against their will for any reason. “[T]he Amendment can most reasonably be read as defining a citizenship which

a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted,

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

or any other government unit.” 15 In a subsequent decision, how9 United States v. Wong Kim Ark, 169 U.S. 649 (1898).

10 169 U.S. at 682 (these are recognized exceptions to the common-law rule of

acquired citizenship by birth).

11 169 U.S. at 680–82; Elk v. Wilkins, 112 U.S. 94, 99 (1884).

12 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).

13 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 that secures the

privileges and immunities of citizens of the United States against abridgment by

state legislation. 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. Burley Growers’ Coop. Marketing Ass’n,, 276

U.S. 71, 89 (1928); Grosjean v. American Press Co., 297 U.S. 233, 244 (1936).

14 387 U.S. 253 (1967). Though the Court had previously upheld the involuntary expatriation of a woman citizen of the United States during her marriage to a

foreign citizen in Mackenzie v. Hare, 239 U.S. 299 (1915), the subject first received

extended judicial treatment in Perez v. Brownell, 356 U.S. 44 (1958), in which the

Court, by a five-to-four decision, upheld a statute denaturalizing a native-born citizen for having voted in a foreign election. For the Court, Justice Frankfurter reasoned that Congress’s power to regulate foreign affairs carried with it the authority

to sever the relationship of this country with one of its citizens to avoid national

implication in acts of that citizen which might embarrass relations with a foreign

nation. Id. at 60–62. Three of the dissenters denied that Congress had any power to

denaturalize. See discussion of “Expatriation” under Article I, supra. In the years

before Afroyim, a series of decisions had curbed congressional power.

15 Afroyim v. Rusk, 387 U.S. 253, 262–63 (1967). The Court went on to say, “It

is true that the chief interest of the people in giving permanence and security to

AMENDMENT 14—RIGHTS GUARANTEED 1831
ever, the Court held that persons who were statutorily naturalized

by being born abroad of at least one American parent could not claim

the protection of the first sentence of section 1 and that Congress

could therefore impose a reasonable and non-arbitrary condition subsequent upon their continued retention of United States citizenship.16 Between these two decisions is a tension that should call

forth further litigation efforts to explore the meaning of the citizenship sentence of the Fourteenth Amendment.

PRIVILEGES OR IMMUNITIES

Unique among constitutional provisions, the clause prohibiting

state abridgement of the “privileges or immunities” of United States

citizens was rendered a “practical nullity” by a single decision of

the Supreme Court issued within five years of its ratification. In

the Slaughter-House Cases,

17 the Court evaluated a Louisiana statute that conferred a monopoly upon a single corporation to engage

in the business of slaughtering cattle. In determining whether this

statute abridged the “privileges” of other butchers, the Court frustrated the aims of the most aggressive sponsors of the privileges or

immunities Clause. According to the Court, these sponsors had sought

to centralize “in the hands of the Federal Government large powers hitherto exercised by the States” by converting the rights of the

citizens of each state at the time of the adoption of the Fourteenth

Amendment into protected privileges and immunities of United States

citizenship. This interpretation would have allowed business to develop unimpeded by state interference by limiting state laws “abridging” these privileges.

According to the Court, however, such an interpretation would

have “transfer[red] the security and protection of all the civil rights

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

Congress the entire domain of civil rights heretofore belonging exclusively to the States,” and would “constitute this court a perpetual censor upon all legislation of the States, on the civil rights

of their own citizens, with authority to nullify such as it did not

citizenship in the Fourteenth Amendment was the desire to protect Negroes. . . .

This undeniable purpose of the Fourteenth Amendment to make citizenship of Negroes permanent and secure would be frustrated by holding that the government

can rob a citizen of his citizenship without his consent by simply proceeding to act

under an implied general power to regulate foreign affairs or some other power generally granted.” Four dissenters, Justices Harlan, Clark, Stewart, and White, controverted the Court’s reliance on the history and meaning of the Fourteenth Amendment and reasserted Justice Frankfurter’s previous reasoning in Perez. Id. at 268.

16 Rogers v. Bellei, 401 U.S. 815 (1971). This, too, was a five-to-four decision,

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

the majority, and Justices Black, Douglas, Brennan, and Marshall dissenting.

17 83 U.S. (16 Wall.) 36, 71, 77–78 (1873).

1832 AMENDMENT 14—RIGHTS GUARANTEED
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 which proposed these amendments, nor by the legislatures of the States which ratified them,” and that the “one pervading purpose” of this and the other War Amendments was “the

freedom of the slave race.”

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

alleged by the competing New Orleans butchers to have been violated were derived from the butchers’ national citizenship; insofar

as the Louisiana law interfered with their pursuit of the business

of butchering animals, the privilege was one that “belong to the citizens of the States as such.” Despite the broad language of this clause,

the Court held that the privileges and immunities of state citizenship had been “left to the State governments for security and protection” and had not been placed by the clause “under the special

care of the Federal government.” The only privileges that 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.” 18 These

privileges, however, had been available to United States citizens and

protected from state interference by operation of federal supremacy

even prior to the adoption of the Fourteenth Amendment. The

Slaughter-House Cases, therefore, reduced the Privileges or Immunities Clause to a superfluous reiteration of a prohibition already

operative against the states.

Although the Court in the Slaughter-House Cases expressed a

reluctance to enumerate those privileges and immunities of United

States citizens that are protected against state encroachment, it nevertheless felt obliged to suggest some. Among those that it 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.19 In Twining v. New

18 83 U.S. at 78, 79.

19 83 U.S. at 79–80.

AMENDMENT 14—RIGHTS GUARANTEED 1833
Jersey,

20 the Court recognized “among the rights and privileges” of

national citizenship the right to pass freely from state to state,21

the right to petition Congress for a redress of grievances,22 the right

to vote for national officers,23 the right to enter public lands,24 the

right to be protected against violence while in the lawful custody of

a United States marshal,25 and the right to inform the United States

authorities of violation of its laws.26 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.” 27

In modern times, the Court has continued the minor role accorded to the clause, only occasionally manifesting a disposition to

enlarge the restraint that it imposes upon state action.28 In Hague

v. CIO,

29 two and perhaps three justices thought that the freedom

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

20 211 U.S. 78, 97 (1908).

21 Citing Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868). It was observed in

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

was actually held to burden directly the performance by the United States of its

governmental functions. Cf. Passenger Cases (Smith v. Turner), 48 U.S. (7 How.)

283, 491–92 (1849) (Chief Justice Taney dissenting). Four concurring Justices in Edwards v. California, 314 U.S. 160, 177, 181 (1941), would have grounded a right of

interstate travel on the privileges or immunities clause. More recently, the Court

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

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

(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).

22 Citing United States v. Cruikshank, 92 U.S. 542 (1876).

23 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).

24 Citing United States v. Waddell, 112 U.S. 76 (1884).

25 Citing Logan v. United States, 144 U.S. 263 (1892).

26 Citing In re Quarles and Butler, 158 U.S. 532 (1895).

27 Crutcher v. Kentucky, 141 U.S. 47, 57 (1891).

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

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

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

Immunities Clause into a source of protection of other than those “interests growing

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

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

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

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

the loan was made within the state.

29 307 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.

1834 AMENDMENT 14—RIGHTS GUARANTEED
citizen, and, in Edwards v. California,

30 four Justices were prepared to rely on the clause.31 In many other respects, however, claims

based on this clause have been rejected.32

30 314 U.S. 160, 177–83 (1941).

31 See also Oregon v. Mitchell, 400 U.S. 112, 149 (1970) (Justice Douglas); id. at

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

32 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 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

AMENDMENT 14—RIGHTS GUARANTEED 1835
In Oyama v. California,

33 the Court, in a single sentence, agreed

with the contention of a native-born youth that a state Alien Land

Law that resulted in the forfeiture of property purchased in his name

with funds advanced by his parent, a Japanese alien ineligible for

citizenship and precluded from owning land, deprived him “of his

privileges as an American citizen.” The right to acquire and retain

property had previously not been set forth in any of the enumerations as one of the privileges protected against 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.34

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

previously considered as violations of the right to travel derived from

the Equal Protection Clause,35 as a potential violation of the Privileges or Immunities Clause. Thus, where a California law restricted the level of welfare benefits available to Californians who

have been residents for less than a year to the level of benefits available in the state of their prior residence, the Court found a violation of the right of newly arrived citizens to be treated the same as

other state citizens.36 Despite suggestions that this opinion will open

the door to “guaranteed equal access to all public benefits,” 37 it seems

more likely that the Court is protecting the privilege of being treated

immediately as a full citizen of the state one chooses for permanent residence.38

DUE PROCESS OF LAW

Generally

Due process under the Fourteenth Amendment can be broken

down into two categories: procedural due process and substantive

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

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

the affirmative vote of a majority of those citizens participating in a community referendum).

33 332 U.S. 633, 640 (1948).

34 Civil Rights Act of 1866, ch. 31, 14 Stat. 27, now 42 U.S.C. § 1982, as amended.

35 See The Right to Travel, infra.

36 Saenz v. Roe, 526 U.S. 489 (1999).

37 526 U.S. at 525 (Thomas, J., dissenting).

38 The right of United States citizens to choose their state of residence is specifically protected by the first sentence of the 14th Amendment “All persons born or

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

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

1836 AMENDMENT 14—RIGHTS GUARANTEED
detail below, include notice, opportunity for hearing, confrontation

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

of counsel. Substantive due process, although also based on principles of “fundamental fairness,” is used to evaluate whether a law

can be applied by states at all, regardless of the procedure followed. Substantive due process has generally dealt with specific subject areas, such as liberty of contract or privacy, and over time has

alternately emphasized the importance of economic and noneconomic matters. In theory, the issues of procedural and substantive

due process are closely related. In reality, substantive due process

has had greater political import, as significant portions of a state

legislature’s substantive jurisdiction can be restricted by its application.

Although the extent of the rights protected by substantive due

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

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

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

threatened fundamental rights of its citizens,39 and one of the most

important doctrines flowing from this is the application of the Bill

of Rights to the states through the Due Process Clause.40 Through

the process of “selective incorporation,” most of the provisions of the

first eight Amendments, such as free speech, freedom of religion,

and protection against unreasonable searches and seizures, are applied against the states as they are against the federal government. Though application of these rights against the states is no

longer controversial, the incorporation of other substantive rights,

as is discussed in detail below, has been.

Definitions

“Person”.—The Due Process Clause provides that no states shall

deprive any “person” of “life, liberty or property” without due process of law. A historical controversy has been waged concerning

whether the framers of the Fourteenth Amendment intended the

word “person” to mean only natural persons, or whether the word

was substituted for the word “citizen” with a view to protecting cor39 The Privileges or Immunities Clause, more so than the Due Process Clause,

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

the privileges or immunities of citizens of the United States . . . .” See AKHIL REED

AMAR, THE BILL OF RIGHTS 163–180 (1998). As discussed earlier, however, the Court

limited the effectiveness of that clause soon after the ratification of the 14th Amendment. See Privileges or Immunities, supra. Instead, the Due Process Clause, though

selective incorporation, became the basis for the Court to recognize important substantive rights against the states.

40 See Bill of Rights, Fourteenth Amendment, supra.

AMENDMENT 14—RIGHTS GUARANTEED 1837
porations from oppressive state legislation.41 As early as the 1877

Granger Cases 42 the Supreme Court upheld various regulatory state

laws without raising any question as to whether a corporation could

advance due process claims. Further, there is no doubt that a corporation may not be deprived of its property without due process of

law.43 Although various decisions have held that the “liberty” guaranteed by the Fourteenth Amendment is the liberty of natural,44

not artificial, persons,45 nevertheless, in 1936, a newspaper corporation successfully objected that a state law deprived it of liberty

of the press.46

A separate question is the ability of a government official to invoke the Due Process Clause to protect the interests of his office.

Ordinarily, the mere official interest of a public officer, such as the

interest in enforcing a law, has not been deemed adequate to enable him to challenge the constitutionality of a law under the Fourteenth Amendment.47 Similarly, municipal corporations have no standing “to invoke the provisions of the Fourteenth Amendment in

41 See Graham, The “Conspiracy Theory” of the Fourteenth Amendment, 47 YALE

L. J. 371 (1938).

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

“equally with the States . . . are prohibited from depriving persons or corporations

of property without due process of law.” Sinking Fund Cases, 99 U.S. 700, 718–19

(1879).

43 Smyth v. Ames, 169 U.S. 466, 522, 526 (1898); Kentucky Co. v. Paramount

Exch., 262 U.S. 544, 550 (1923); Liggett Co. v. Baldridge, 278 U.S. 105 (1928).

44 As to the natural persons protected by the due process clause, these include

all human beings regardless of race, color, or citizenship. Yick Wo v. Hopkins, 118

U.S. 356 (1886); Terrace v. Thompson, 263 U.S. 197, 216 (1923). See Hellenic Lines

v. Rhodetis, 398 U.S. 306, 309 (1970).

45 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.”

46 Grosjean v. American Press Co., 297 U.S. 233, 244 (1936) (“a corporation is a

‘person’ within the meaning of the equal protection and due process of law clauses”).

In First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), faced with the validity of state restraints upon expression by corporations, the Court did not determine

that corporations have First Amendment liberty rights—and other constitutional rights—

but decided instead that expression was protected, irrespective of the speaker, because of the interests of the listeners. See id. at 778 n.14 (reserving question). But

see id. at 809, 822 (Justices White and Rehnquist dissenting) (corporations as creatures of the state have the rights state gives them).

47 Pennie v. Reis, 132 U.S. 464 (1889); Taylor and Marshall v. Beckham (No. 1),

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

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

U.S. 96 (1931).

1838 AMENDMENT 14—RIGHTS GUARANTEED
opposition to the will of their creator,” the state.48 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 statutes in relation to which they have

official duties,” and, accordingly, may apply to federal courts “to review decisions of state courts declaring state statutes, which [they]

seek to enforce, to be repugnant to the [Fourteenth Amendment of]

the Federal Constitution . . . .” 49

“Property” and Police Power.—States have an inherent “police power” to promote public safety, health, morals, public convenience, and general prosperity,50 but the extent of the power may

vary based on the subject matter over which it is exercised.51 If a

police power regulation goes too far, it will be recognized as a tak48 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 a state).

49 Coleman v. Miller, 307 U.S. 433, 445, 442, 443 (1939); Boynton v. Hutchinson

Gas Co., 291 U.S. 656 (1934); South Carolina Highway Dep’t 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).

50 This power is not confined to the suppression of what is offensive, disorderly,

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

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

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

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

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

Bacon v. Walker, 204 U.S. 311 (1907); Eubank v. City of 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).

51 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 Co. v. Highway Comm’n,

294 U.S. 613 (1935). “It is settled [however] that neither the ‘contract’ clause nor

the ‘due process’ clause had the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health, safety, good

order, comfort, or general welfare of the community; that this power can neither be

abdicated nor bargained away, and is inalienable even by express grant; and that

all contract and property [or other vested] rights are held subject to its fair exercise.” Atlantic Coast Line R.R. v. City of Goldsboro, 232 U.S. 548 (1914).

AMENDMENT 14—RIGHTS GUARANTEED 1839
ing of property for which compensation must be paid.52 Thus, the

means employed to effect its exercise may be neither arbitrary nor

oppressive but must bear a real and substantial relation to an end

that is public, specifically, the public health, safety, or morals, or

some other aspect of the general welfare.53

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

a private use.54 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.” 55 Moreover, it is

elementary that enforcement of a law passed in the legitimate exertion of the police power is not a taking without due process of

law, even if the cost is borne by the regulated.56 Initial compliance

with a regulation that is valid when adopted, however, does not preclude later protest if that regulation subsequently becomes confiscatory in its operation.57

“Liberty”.—As will be discussed in detail below, the substantive “liberty” guaranteed by the Due Process Clause has been variously defined by the Court. In the early years, it meant almost exclusively “liberty of contract,” but with the demise of liberty of contract

came a general broadening of “liberty” to include personal, political

and social rights and privileges.58 Nonetheless, the Court is generally chary of expanding the concept absent statutorily recognized

rights.59

52 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Welch v. Swasey, 214

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

U.S. 104 (1978); Agins v. City of Tiburon, 447 U.S. 255 (1980). See also analysis of

“Regulatory Takings” under the Fifth Amendment. Although the Fourteenth Amendment does not contain a “takings” provisions such as is found in the Fifth Amendment, the Court has held that such provision has been incorporated. Webb’s Fabulous Pharmacies v. Beckwith, 449 U.S. 155, 159 (1980).

53 Liggett Co. v. Baldridge, 278 U.S. 105, 111–12 (1928); Treigle v. Acme Homestead Ass’n, 297 U.S. 189, 197 (1936).

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

to contribute to fund to guarantee the deposits of contributing banks).

55 Erie R.R. v. Williams, 233 U.S. 685, 700 (1914).

56 New Orleans Public Service v. New Orleans, 281 U.S. 682, 687 (1930).

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

58 See the tentative effort in Hampton v. Mow Sun Wong, 426 U.S. 88, 102 &

n.23 (1976), apparently to expand upon the concept of “liberty” within the meaning

of the Fifth Amendment’s Due Process Clause and necessarily therefore the Fourteenth’s.

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

215 (1976); and Montanye v. Haymes, 427 U.S. 236 (1976), in which the Court applied to its determination of what is a liberty interest the “entitlement” doctrine

developed in property cases, in which the interest is made to depend upon state

recognition of the interest through positive law, an approach contrary to previous

1840 AMENDMENT 14—RIGHTS GUARANTEED
The Rise and Fall of Economic Substantive Due Process:

Overview

Long before the passage of the 14th Amendment, the Due Process Clause of the Fifth Amendment was recognized as a restraint

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

legislature needed to provide procedural “due process” for the enforcement of law.60 Although individual Justices suggested early on

that particular legislation could be so in conflict with precepts of

natural law as to render it wholly unconstitutional,61 the potential

of the Due Process Clause of the 14th Amendment as a substantive

restraint on state action appears to have been grossly underestimated in the years immediately following its adoption.62

Thus, early invocations of “substantive” due process were unsuccessful. In the Slaughter-House Cases,

63 discussed previously in the

context of the Privileges or Immunities Clause,64 a group of butchers challenged a Louisiana statute conferring the exclusive privilege of butchering cattle in New Orleans to one corporation. In reviewing the validity of this monopoly, the Court noted that the

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

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

189 (1989) (no due process violation for failure of state to protect an abused child

from his parent, even though abuse had been detected by social service agency); Collins v. City of Harker Heights, 503 U.S. 115 (1992) (failure of city to warn its employees about workplace hazards does not violate due process; the due process clause

does not impose a duty on the city to provide employees with a safe working environment); County of Sacramento v. Lewis, 523 U.S. 833 (1998) (high-speed automobile chase by police officer causing death through deliberate or reckless indifference

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

process). But see Chavez v. Martinez, 538 U.S. 760 (2003) (case remanded to federal

circuit court to determine whether coercive questioning of severely injured suspect

gave rise to a compensable violation of due process).

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

former slaves, as non-citizens, could not claim the protections of the clause. 60 U.S.

(19 How.) 393, 450 (1857).

61 See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (“An act of the legislature (for I cannot call it a law), contrary to the first great principles of the social

compact, cannot be considered a rightful exercise of legislative authority”) (Chase,

J.).

62 In the years following the ratification of the 14th Amendment, the Court often observed that the Due Process Clause “operates to extend . . . the same protection against arbitrary state legislation, affecting life, liberty and property, as is offered by the Fifth Amendment,” Hibben v. Smith, 191 U.S. 310, 325 (1903), and that

“ordinarily if an act of Congress is valid under the Fifth Amendment it would be

hard to say that a state law in like terms was void under the Fourteenth,” Carroll

v. Greenwich Ins. Co., 199 U.S. 401, 410 (1905). See also French v. Barber Asphalt

Paving Co., 181 U.S. 324, 328 (1901). There is support for the notion, however, that

the proponents of the 14th Amendment envisioned a more expansive substantive

interpretation of that Amendment than had developed under the Fifth Amendment.

See AKHIL REED AMAR, THE BILL OF RIGHTS 181–197 (1998).

63 83 U.S. (16 Wall.) 36 (1873).

64 See Privileges or Immunities Clause.

AMENDMENT 14—RIGHTS GUARANTEED 1841
prohibition against a deprivation of property without due process

“has been in the Constitution since the adoption of the fifth amendment, as a restraint upon the Federal power. It is also to be found

in some forms of expression in the constitutions 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.” 65

Four years later, in Munn v. Illinois,

66 the Court reviewed the

regulation of rates charged for the transportation and warehousing

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

invalidating substantive state legislation. Rejecting contentions that

such legislation effected an unconstitutional deprivation of property by preventing the owner from earning a reasonable compensation for its use and by transferring an interest in a private enterprise to the public, Chief Justice Waite emphasized that “the great

office of statutes is to remedy defects in the common law as they

are developed. . . . We know that this power [of rate regulation] may

be abused; but that is no argument against its existence. For protection against abuses by legislatures the people must resort to the

polls, not to the courts.”

In Davidson v. New Orleans,

67 Justice Miller also counseled against

a departure from these conventional applications of due process, although he acknowledged the difficulty of arriving at a precise, allinclusive definition of the clause. “It is not a little remarkable,” he

observed, “that while this provision has been in the Constitution of

the United States, as a restraint upon the authority of the Federal

government, for nearly a century, and while, during all that time,

the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most

rigid criticism in all its branches, this special limitation upon its

powers has rarely been invoked in the judicial forum or the more

enlarged theatre of public discussion. But while it has been part of

the Constitution, as a restraint upon the power of the States, only

a very few years, the docket of this court is crowded with cases in

which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property

65 83 U.S. (16 Wall.) at 80–81.

66 94 U.S. 113, 134 (1877).

67 96 U.S. 97, 103–04 (1878).

1842 AMENDMENT 14—RIGHTS GUARANTEED
without due process of law. There is here abundant evidence that

there exists some strange misconception of the scope of this provision as found in the fourteenth amendment. In fact, it would seem,

from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked

upon as a means of bringing to the test of the decision of this court

the abstract opinions of every unsuccessful litigant in a State court

of the justice of the decision against him, and of the merits of the

legislation on which such a decision may be founded. If, therefore,

it were possible to define what it is for a State to deprive a person

of life, liberty, or property without due process of law, in terms which

would cover every exercise of power thus forbidden to the State,

and exclude those which are not, no more useful construction could

be furnished by this or any other court to any part of the fundamental 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, we think, 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, with the reasoning on which such decisions may be founded.”

A bare half-dozen years later, however, in Hurtado v. California,

68 the Justices gave warning of an impending modification of

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

due process under the United States Constitution differed from due

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

executive and judicial acts, whereas the former also applied to legislative acts. Consequently, the limits of the due process under the

14th Amendment could not be appraised solely in terms of the “sanction of settled usage” under common law. The Court then declared

that “[a]rbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as

the decree of a personal monarch or of an impersonal multitude.

And the limitations imposed by our constitutional law upon the action of the governments, both state and national, are essential to

the preservation of public and private rights, notwithstanding the

representative character of our political institutions. The enforcement of these limitations by judicial process is the device of selfgoverning communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence

of public agents transcending the limits of lawful authority, even

when acting in the name and wielding the force of the government.” By this language, the states were put on notice that all types

68 110 U.S. 516, 528, 532, 536 (1884).

AMENDMENT 14—RIGHTS GUARANTEED 1843
of state legislation, whether dealing with procedural or substantive

rights, were now subject to the scrutiny of the Court when questions of essential justice were raised.

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

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

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

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

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

prior to the Civil War. In the meantime, however, the SlaughterHouse Cases and Munn v. Illinois had to be overruled at least in

part.

About twenty years were required to complete this process, in

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

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

Illinois,

69 namely, that state police power is solely a power to prevent injury to the “peace, good order, morals, and health of the community.” 70 This reasoning was adopted by the Court in Mugler v.

Kansas,

71 where, despite upholding a state alcohol regulation, the

Court held that “[i]t does not at all follow that every statute enacted ostensibly for the promotion of [public health, morals or safety]

is to be accepted as a legitimate exertion of the police powers of

the state.” The second strand, which had been espoused by Justice

Bradley in his dissent in the Slaughter-House Cases,

72 tentatively

transformed ideas embodying the social compact and natural rights

69 94 U.S. 113, 141–48 (1877).

70 “It is true that the legislation which secures to all protection in their rights,

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

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

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

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

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

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

the government in connection with it, may demand for its use, or for their own services in union with it, forms no element of consideration in prescribing regulations

for that purpose.” 94 U.S. at 145–46.

71 123 U.S. 623, 661 (1887).

72 83 U.S. (16 Wall.) 36, 113–14, 116, 122 (1873).

1844 AMENDMENT 14—RIGHTS GUARANTEED
into constitutionally enforceable limitations upon government.73 The

consequence was that the states in exercising their police powers

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

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

would not unreasonably interfere with fundamental natural rights

of liberty and property. As articulated by Justice Bradley, these rights

were equated with freedom to pursue a lawful calling and to make

contracts for that purpose.74

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

by Herbert Spencer). Thus, “liberty” became synonymous with governmental non-interference in the field of private economic relations. For instance, in Budd v. New York,

75 Justice Brewer declared in dictum: “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.”

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

statute must be presumed valid until clearly shown to be otherwise, by shifting focus to whether facts existed to justify a particular law.76 The original position could be seen in earlier cases such

as Munn v. Illinois,

77 in which the Court sustained the legislation

before it by presuming that such facts existed: “For our purposes

we must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed.” Ten years later, however, in Mugler

73 Loan Ass’n v. Topeka, 87 U.S. (20 Wall.) 655 (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 . . . .”

74 “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).

75 143 U.S. 517, 551 (1892).

76 See Fletcher v. Peck, 10 U.S. (6 Cr.) 87, 128 (1810).

77 94 U.S. 113, 123, 182 (1877).

AMENDMENT 14—RIGHTS GUARANTEED 1845
v. Kansas,

78 rather than presume the relevant facts, the Court sustained a statewide anti-liquor law based on the proposition that the

deleterious social effects of the excessive use of alcoholic liquors were

sufficiently notorious for the Court to be able to take notice of them.79

This opened the door for future Court appraisals of the facts that

had induced the legislature to enact the statute.80

Mugler was significant because it implied that, unless the Court

found by judicial notice the existence of justifying fact, it would invalidate a police power regulation as bearing no reasonable or adequate relation to the purposes to be subserved by the latter—

namely, health, morals, or safety. Interestingly, the Court found the

rule of presumed validity quite serviceable for appraising state legislation affecting neither liberty nor property, but for legislation constituting governmental interference in the field of economic relations, especially labor-management relations, the Court found the

principle of judicial notice more advantageous. In litigation embracing the latter type of legislation, the Court would also tend to shift

the burden of proof, which had been with litigants challenging legislation, to the state seeking enforcement. Thus, the state had the

task of demonstrating that a statute interfering with a natural right

of liberty or property was in fact “authorized” by the Constitution,

and not merely that the latter did not expressly prohibit enactment of the same. As will be discussed in detail below, this approach was used from the turn of the century through the mid1930s to strike down numerous laws that were seen as restricting

economic liberties.

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

Deal. Thus, in 1934, the Court in Nebbia v. New York 81 discarded

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

82 which

upheld a statutory scheme regulating the sale of eyeglasses that

favored ophthalmologists and optometrists in private professional

78 123 U.S. 623 (1887).

79 123 U.S. at 662. “We cannot shut out of view the fact, within the knowledge

of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact . . . that . . . pauperism, and crime . . . are, in some degree, at least, traceable to this evil.”

80 The following year the Court, confronted with an act restricting the sale of

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

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

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

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

81 291 U.S. 502 (1934).

82 348 U.S. 483 (1955).

1846 AMENDMENT 14—RIGHTS GUARANTEED
practice and disadvantaged opticians and those employed by or using space in business establishments. “The day is gone when this

Court uses the Due Process Clause of the Fourteenth Amendment

to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. . . . We emphasize again

what Chief Justice Waite said in Munn v. Illinois, 94 U.S. 113, 134,

‘For protection against abuses by legislatures the people must resort to the polls, not to the courts.’ ” 83 The Court went on to assess

the reasons that might have justified the legislature in prescribing

the regulation at issue, leaving open the possibility that some regulation might be found unreasonable.84 More recent decisions have

limited this inquiry to whether the legislation is arbitrary or irrational, and have abandoned any requirement of “reasonableness.” 85

Regulation of Labor Conditions

Liberty of Contract.—One of the most important concepts used

during the ascendancy of economic due process was liberty of contract. The original idea of economic liberties was advanced by Justices Bradley and Field in the Slaughter-House Cases,

86 and elevated to the status of accepted doctrine in Allgeyer v. Louisiana,87

It was then used repeatedly during the early part of this century

to strike down state and federal labor regulations. “The liberty men83 348 U.S. at 488.

84 348 U.S. at 487, 491.

85 The Court has pronounced a strict “hands-off” standard of judicial review, whether

of congressional or state legislative efforts to structure and accommodate the burdens and benefits of economic life. Such legislation is to be “accorded the traditional

presumption of constitutionality generally accorded economic regulations” and is to

be “upheld absent proof of arbitrariness or irrationality on the part of Congress.”

That the accommodation among interests which the legislative branch has struck

“may have profound and far-reaching consequences . . . provides all the more reason for this Court to defer to the congressional judgment unless it is demonstrably

arbitrary or irrational.” Duke Power Co. v. Carolina Environmental Study Group,

438 U.S. 59, 83–84 (1978). See also Usery v. Turner Elkhorn Mining Co., 428 U.S. 1,

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

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

R.I. & P. R.R., 393 U.S. 129 (1968); Ferguson v. Skrupa, 372 U.S. 726, 730, 733

(1963).

86 83 U.S. (16 Wall.) 36 (1873).

87 165 U.S. 578 (1897). Freedom of contract was also alluded to as a property

right, as is evident in the language of the Court in Coppage v. Kansas, 236 U.S. 1,

14 (1915). “Included in the right of personal liberty and the right of private property—

partaking of the nature of each—is the right to make contracts for the acquisition

of property. Chief among such contracts is that of personal employment, by which

labor and other services are exchanged for money or other forms of property. If this

right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense.”

AMENDMENT 14—RIGHTS GUARANTEED 1847
tioned 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.” 88

The Court, however, did sustain some labor regulations by acknowledging that freedom of contract was “a qualified and not an

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

imposed in the interests 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.” 89

Still, the Court was committed to the principle that freedom of

contract is the general rule and that legislative authority to abridge

it could be justified only by exceptional circumstances. To serve this

end, the Court intermittently employed the rule of judicial notice

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

Holden v. Hardy 90 and Lochner v. New York.

91 In Holden v. Hardy,92

the Court, relying on the principle of presumed validity, allowed the

burden of proof to remain with those attacking a Utah act limiting

the period of labor in mines to eight hours per day. Recognizing the

fact that labor below the surface of the earth was attended by risk

to person and to health and for these reasons had long been the

subject of state intervention, the Court registered its willingness to

sustain a law that the state legislature had adjudged “necessary

for the preservation of health of employees,” and for which there

were “reasonable grounds for believing that . . . [it was] supported

by the facts.”

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

88 165 U.S. at 589.

89 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).

90 169 U.S. 366 (1898).

91 198 U.S. 45 (1905).

92 169 U.S. 366, 398 (1898).

1848 AMENDMENT 14—RIGHTS GUARANTEED
New York,

93 the Court found that a law restricting employment in

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

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

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

the Court was substituting its own judgment for that of the legislature, Justice Peckham nevertheless maintained that whether the

act was within the police power of the state was a “question that

must be answered by the Court.” Then, in disregard of the medical

evidence proffered, the Justice stated: “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 other

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?” 94

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

regulation, pointing to the abundance of medical testimony tending

to show that the life expectancy of bakers was below average, that

their capacity to resist diseases was low, and that they were peculiarly prone to suffer irritations of the eyes, lungs, and bronchial

passages. He concluded that the very existence of such evidence left

the reasonableness of the measure open to discussion and thus within

the discretion of the legislature. “The responsibility therefor rests

upon the legislators, not upon the courts. No evils arising from such

legislation could be more far-reaching than those that might come

to our system of government if the judiciary, abandoning the sphere

assigned to it by the fundamental law, should enter the domain of

legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people’s

representatives. . . . [L]egislative 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.” 95

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

reasoning the Court was to follow 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

93 198 U.S. 45 (1905).

94 198 U.S. at 59.

95 198 U.S. at 74 (quoting Atkin v. Kansas, 191 U.S. 207, 223 (1903)).

AMENDMENT 14—RIGHTS GUARANTEED 1849
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 relation 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.” 96

Justice Holmes did not reject the basic concept of substantive

due process, but rather the Court’s presumption against economic

regulation.97 Thus, Justice Holmes whether consciously or not, was

prepared to support, along with his opponents in the majority, a

“perpetual censorship” over state legislation. The basic distinction,

therefore, between the positions taken by Justice Peckham for the

majority and Justice Holmes, for what was then the minority, was

the use of the doctrine of judicial notice by the former and the doctrine of presumed validity by the latter.

Holmes’ dissent soon bore fruit in Muller v. Oregon 98 and Bunting v. Oregon,

99 which allowed, respectively, regulation of hours worked

by women and by men in certain industries. The doctrinal approach employed was to find that the regulation was supported by

evidence despite the shift in the burden of proof entailed by application of the principle of judicial notice. Thus, counsel defending

the constitutionality of social legislation developed the practice of

96 198 U.S. at 75–76.

97 Thus, Justice Holmes’ criticism of his colleagues was unfair, as even a “rational and fair man” would be guided by some preferences or “economic predilections.”

98 208 U.S. 412 (1908).

99 243 U.S. 426 (1917).

1850 AMENDMENT 14—RIGHTS GUARANTEED
submitting voluminous factual briefs, known as “Brandeis Briefs,” 100

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,101 it generally intimated

that the facts thus submitted by way of justification had been authenticated sufficiently for it to take judicial cognizance thereof. On

the other hand, whenever it chose to invalidate comparable legislation, such as enactments establishing a minimum wage for women

and children,102 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 replaced by the belief that it is peculiarly the duty of

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

sustain this remedial legislation, the Court had to extensively revise its previously formulated concepts of “liberty” under the Due

Process Clause. Thus, the Court, in overturning prior holdings and

sustaining minimum wage legislation,103 took judicial notice of the

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

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

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

To the extent that it acknowledged that liberty of the individual may be infringed by the coercive conduct of private individuals no less than by public officials, the Court in effect transformed

the Due Process Clause into a source of encouragement to state legislatures to intervene affirmatively to mitigate the effects of such

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

was replaced by the civil liberty which an individual enjoys by vir100 Named for attorney (later Justice) Louis Brandeis, who presented voluminous documentation to support the regulation of women’s working hours in Muller

v. Oregon, 208 U.S. 412 (1908).

101 E.g., Muller v. Oregon; Bunting v. Oregon.

102 See, e.g., Adkins v. Children’s Hospital, 261 U.S. 525 (1923).

103 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). Thus the National Labor Relations Act was declared not to “interfere with the normal exercise of the right

of the employer to select its employees or to discharge them.” However, restraint of

the employer for the purpose of preventing an unjust interference with the correlative right of his employees to organize was declared not to be arbitrary. NLRB v.

Jones & Laughlin Steel Corp., 301 U.S. 1, 44, 45–46 (1937).

AMENDMENT 14—RIGHTS GUARANTEED 1851
tue of the restraints which government, in his behalf, imposes upon

his neighbors.

Laws Regulating Working Conditions and Wages.—As noted,

even during the Lochner era, the Due Process Clause was construed as permitting enactment by the states of maximum hours

laws applicable to women workers 104 and to all workers in specified lines of work thought to be physically demanding or otherwise

worthy of special protection.105 Similarly, the regulation of how wages

were to be paid was allowed, including the form of payment,106 its

frequency,107 and how such payment was to be calculated.108 And,

because of the almost plenary powers of the state and its municipal subdivisions to determine the conditions for work on public projects, statutes limiting the hours of labor on public works were also

upheld at a relatively early date.109 Further, states could prohibit

the employment of persons under 16 years of age in dangerous occupations and require employers to ascertain whether their employees were in fact below that age.110

The regulation of mines represented a further exception to the

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

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

providing for mining inspectors (paid for by mine owners),111 licensing mine managers and mine examiners, and imposing liability upon

104 Miller v. Wilson, 236 U.S. 373 (1915) (statute limiting work to 8 hours/day,

48 hours/week); Bosley v. McLaughlin, 236 U.S. 385 (1915) (same restrictions for

women working as pharmacists or student nurses). See also Muller v. Oregon, 208

U.S. 412 (1908) (10 hours/day as applied to work in laundries); Riley v. Massachusetts, 232 U.S. 671 (1914) (violation of lunch hour required to be posted).

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

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

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

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

establishment).

106 Statute requiring redemption in cash of store orders or other evidences of

indebtedness issued by employers in payment of wages did not violate liberty of contract. Knoxville Iron Co. v. Harbison, 183 U.S. 13 (1901); Dayton Coal and Iron Co.

v. Barton, 183 U.S. 23 (1901); Keokee Coke Co. v. Taylor, 234 U.S. 224 (1914).

107 Laws requiring railroads to pay their employees semimonthly, Erie R.R. v.

Williams, 233 U.S. 685 (1914), or to pay them on the day of discharge, without abatement or reduction, any funds due them, St. Louis, I. Mt. & S.P. Ry. v. Paul, 173 U.S.

404 (1899), do not violate due process.

108 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. Rail Coal Co. v. Ohio Industrial Comm’n, 236 U.S.

338 (1915). See also McLean v. Arkansas, 211 U.S. 539 (1909).

109 Atkin v. Kansas, 191 U.S. 207 (1903).

110 Sturges & Burn v. Beauchamp, 231 U.S. 320 (1913).

111 St. Louis Consol. Coal Co. v. Illinois, 185 U.S. 203 (1902).

1852 AMENDMENT 14—RIGHTS GUARANTEED
mine owners for failure to furnish a reasonably safe place for workmen, were upheld during this period.112 Other similar regulations

that were sustained included laws requiring that underground passageways meet or exceed a minimum width,113 that boundary pillars be installed between adjoining coal properties as a protection

against flood in case of abandonment,114 and that wash houses be

provided for employees.115

One of the more significant negative holdings of the Lochner

era was that states could not regulate how much wages were to be

paid to employees.116 As with the other working condition and wage

issues, however, concern for the welfare of women and children seemed

to weigh heavily on the justices, and restrictions on minimum wages

for these groups were discarded in 1937.117 Ultimately, the reasoning of these cases was extended to more broadly based minimum

wage laws, as the Court began to offer significant deference to the

states to enact economic and social legislation benefitting labor.

The modern theory regarding substantive due process and wage

regulation was explained by Justice Douglas in 1952 in the following terms: “Our recent decisions make plain that we do not sit as a

super-legislature to weigh the wisdom of legislation nor to decide

whether the policy which it expresses offends the public welfare.

The legislative power has limits. . . . But the state legislatures have

constitutional authority to experiment with new techniques; they

are entitled to their own standard of the public welfare; they may

within extremely broad limits control practices in the businesslabor field, so long as specific constitutional prohibitions are not violated and so long as conflicts with valid and controlling federal laws

are avoided.” 118

The Justice further noted that “many forms of regulation reduce the net return of the enterprise. . . . Most regulations of busi112 Wilmington Mining Co. v. Fulton, 205 U.S. 60 (1907).

113 Barrett v. Indiana, 229 U.S. 26 (1913).

114 Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 (1914).

115 Booth v. Indiana, 237 U.S. 391 (1915).

116 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).

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

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

York ex rel. Tipaldo, 298 U.S. 587 (1936).

118 Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952) (sustaining a

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

the polls were open on election day without deduction of wages for their absence).

The Court in Day-Brite Lighting, Inc. recognized that the legislation in question served

as a form of wage control for men, which had previously found unconstitutional.

Justice Douglas, however, wrote that “the protection of the right of suffrage under

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

power.

AMENDMENT 14—RIGHTS GUARANTEED 1853
ness 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 wellbeing 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.” 119

Workers’ Compensation Laws.—Workers’ compensation laws

also evaded the ravages of Lochner. The Court “repeatedly has upheld the authority of the States to establish by legislation departures from the fellow-servant rule and other common-law rules affecting the employer’s liability for personal injuries to the employee.” 120

Accordingly, a state statute that provided an exclusive system to

govern the liabilities of employers for disabling injuries and death

caused by accident in certain hazardous occupations,121 irrespective of the doctrines of negligence, contributory negligence, assumption of risk, and negligence of fellow-servants, was held not to violate due process.122 Likewise, an act that allowed an injured employee,

though guilty of contributory negligence, an election of remedies be119 342 U.S. at 424–25. See also Dean v. Gadsden Times Pub. Co., 412 U.S. 543

(1973) (sustaining statute providing that employee excused for jury duty should be

entitled to full compensation from employer, less jury service fee).

120 New York Cent. R.R. v. White, 243 U.S. 188, 200 (1917). “These decisions

have established the propositions that the rules of law concerning the employer’s

responsibility for personal injury or death of an employee arising in the course of

employment are not beyond alteration by legislation in the public interest; that no

person has a vested right entitling him to have these any more than other rules of

law remain unchanged for his benefit; and that, if we exclude arbitrary and unreasonable changes, liability may be imposed upon the employer without fault, and the

rules respecting his responsibility to one employee for the negligence of another and

respecting contributory negligence and assumption of risk are subject to legislative

change.” Arizona Employers’ Liability Cases, 250 U.S. 400, 419–20 (1919).

121 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).

122 Nor does it violate due process to deprive an employee or his dependents of

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

1854 AMENDMENT 14—RIGHTS GUARANTEED
tween restricted recovery under a compensation law or full compensatory damages under the Employers’ Liability Act, did not deprive

an employer of his property without due process of law.123 A variety of other statutory schemes have also been upheld.124

Even the imposition upon coal mine operators of the liability of

compensating former employees who terminated work in the industry before passage of the law for black lung disabilities was sustained by the Court as a rational measure to spread the costs of

the employees’ disabilities to those who have profited from the fruits

of their labor.125 Legislation readjusting rights and burdens is not

unlawful solely because it upsets otherwise settled expectations, but

it must take account of the realities previously existing, i.e., that

the danger may not have been known or appreciated, or that actions might have been taken in reliance upon the current state of

the law. Consequently, legislation imposing liability on the basis of

deterrence or of blameworthiness might not have passed muster.

Collective Bargaining.—During the Lochner era, liberty of contract, as translated into what one Justice labeled the Allgeyer-LochnerAdair-Coppage doctrine,126 was used to strike down legislation calNew York Central R.R. v. White, 243 U.S. 188 (1917); Mountain Timber Co. v. Washington, 243 U.S. 219 (1917).

123 Arizona Employers’ Liability Cases, 250 U.S. 400 (1919).

124 Chicago, B. & Q. R.R. v. McGuire, 219 U.S. 549 (1911) (prohibiting contracts

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

contracts shall not constitute satisfaction of a claim); Alaska Packers Ass’n v. Industrial Accident Comm’n,, 294 U.S. 532 (1935) (forbidding contracts exempting employers hired-in-state from liability for injuries outside the state); Thornton v. Duffy, 254

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

though employer had obtained protection from an insurance company under previous statutory scheme); Booth Fisheries v. Industrial Comm’n, 271 U.S. 208 (1926)

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

regardless of its preponderance, right to come under a workmen’s compensation statute is optional with employer); Staten Island Ry. v. Phoenix Co., 281 U.S. 98 (1930)

(wrongdoer is obliged to indemnify employer or the insurance carrier of the employer in the amount which the latter were required to contribute into special compensation funds); Sheehan Co. v. Shuler, 265 U.S. 371 (1924) (where an injured employee dies without dependents, employer or carrier required to make payments into

special funds to be used for vocational rehabilitation or disability compensation of

injured workers of other establishments); New York State Rys. v. Shuler, 265 U.S.

379 (1924) (same holding as above case); New York Cent. R.R. v. Bianc, 250 U.S.

596 (1919) (attorneys are not deprived of property or their liberty of contract by

restriction imposed by the state on the fees they may charge in cases arising under

the workmen’s compensation law); Yeiser v. Dysart, 267 U.S. 540 (1925) (compensation need not be based exclusively on loss of earning power, and award authorized

for injuries resulting in disfigurement of the face or head, independent of compensation for inability to work).

125 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14–20 (1976). But see id. at

38 (Justice Powell concurring).

126 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

AMENDMENT 14—RIGHTS GUARANTEED 1855
culated to enhance the bargaining capacity of workers as against

that already possessed by their employers.

127 The Court did, however, on occasion sustain measures affecting the employment relationship, such as a statute requiring every

corporation to furnish a departing employee a letter setting forth

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

for leaving.128 In Senn v. Tile Layers Union,

129 however, the Court

began to show a greater willingness to defer to legislative judgment as to the wisdom and need of such enactments.

The significance of Senn 130 was, in part, that the case upheld a

statute that was not appreciably different from a statute voided five

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.”

127 In Adair and Coppage the Court voided statutes outlawing “yellow dog” contracts whereby, as a condition of obtaining employment, a worker had to agree not

to join or to remain a member of a union; these laws, the Court ruled, impaired the

employer’s “freedom of contract”—the employer’s unrestricted right to hire and fire.

In Truax, the Court on similar grounds invalidated an Arizona statute which denied

the use of injunctions to employers seeking to restrain picketing and various other

communicative actions by striking employees. And in Wolff Packing Co. v. Industrial

Court, 262 U.S. 522 (1923); 267 U.S. 552 (1925) and Dorchy v. Kansas, 264 U.S. 286

(1924), the Court had also ruled that a statute compelling employers and employees

to submit their controversies over wages and hours to state arbitration was unconstitutional as part of a system compelling employers and employees to continue in

business on terms not of their own making.

128 Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922). Added provisions that such

letters should be on plain paper selected by the employee, signed in ink and sealed,

and free from superfluous figures and words, were also sustained as not amounting

to any unconstitutional deprivation of liberty and property. Chicago, R.I. & P. Ry. v.

Perry, 259 U.S. 548 (1922). In conjunction with its approval of this statute, the Court

also sanctioned judicial enforcement of a local policy rule which rendered illegal an

agreement of several insurance companies having a local monopoly of a line of insurance, to the effect that no company would employ within two years anyone who had

been discharged from, or left, the service of any of the others. On the ground that

the right to strike is not absolute, the Court in a similar manner upheld a statute

under which a labor union official was punished for having ordered a strike for the

purpose of coercing an employer to pay a wage claim of a former employee. Dorchy

v. Kansas, 272 U.S. 306 (1926).

129 301 U.S. 486 (1937).

130 301 U.S. 468 (1937).

1856 AMENDMENT 14—RIGHTS GUARANTEED
years earlier in Truax v. Corrigan.

131 In Truax, the Court had found

that a statute forbidding injunctions on labor protest activities was

unconstitutional as applied to a labor dispute involving picketing,

libelous statements, and threats. The statute that the Court subsequently upheld in Senn, by contrast, authorized publicizing labor

disputes, declared peaceful picketing and patrolling lawful, and prohibited the granting of injunctions against such conduct.132 The difference between these statutes, according to the Court, was that

the law in Senn applied to “peaceful” picketing only, whereas the

law in Truax “was . . . applied to legalize conduct which was not

simply peaceful picketing.” Because the enhancement of job opportunities for members of the union was a legitimate objective, the

state was held competent to authorize the fostering of that end by

peaceful picketing, and the fact that the sustaining of the union in

its efforts at peaceful persuasion might have the effect of preventing Senn from continuing in business as an independent entrepreneur was declared to present an issue of public policy exclusively

for legislative determination.

Years later, after regulations protective of labor allowed unions

to amass enormous economic power, many state legislatures attempted to control the abuse of this power, and the Court’s newfound deference to state labor regulation was also applied to restrictions on unions. Thus, the Court upheld state prohibitions on racial

discrimination by unions, rejecting claims that the measure interfered unlawfully with the union’s right to choose its members, abridged

its property rights, or violated its liberty of contract. Because 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.133

Similarly, state laws outlawing closed shops were upheld in Lincoln Federal Labor Union v. Northwestern Iron & Metal Company 134 and AFL v. American Sash & Door Co.135 When labor unions

131 257 U.S. 312 (1921).

132 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.

133 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.

134 335 U.S. 525 (1949).

135 335 U.S. 538 (1949).

AMENDMENT 14—RIGHTS GUARANTEED 1857
attempted to invoke freedom of contract, the Court, speaking through

Justice Black, announced its refusal “to return . . . to . . . [a] due

process philosophy that has been deliberately discarded. . . . The

due process clause,” it maintained, does not “forbid a State to pass

laws clearly designed to safeguard the opportunity of nonunion workers to get and hold jobs, free from discrimination against them because they are nonunion workers.” 136

And, in UAW v. WERB,

137 the Court upheld the Wisconsin Employment Peace Act, which had been used to proscribe unfair labor

practices by a union. In UAW, the union, acting after collective bargaining negotiations had become deadlocked, had attempted to coerce an employer through calling frequent, irregular, and unannounced union meetings during working hours, resulting in a slowdown

in production. “No one,” declared the Court, can question “the State’s

power to police coercion by . . . methods” that involve “considerable injury to property and intimidation of other employees by

threats.” 138

Regulation of Business Enterprises: Price Controls

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

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

regulation allowed as to those businesses.

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

interval following the ratification of the Fourteenth Amendment, the

Supreme Court found the Due Process Clause to impose no substantive restraint on the power of states to fix rates chargeable by any

136 335 U.S. at 534, 537. In a lengthy opinion, in which he registered his concurrence with both decisions, Justice Frankfurter set forth extensive statistical data

calculated to prove that labor unions not only were possessed of considerable economic power but by virtue of such power were no longer dependent on the closed

shop for survival. He would therefore leave to the legislatures the determination

“whether it is preferable in the public interest that trade unions should be subjected to state intervention or left to the free play of social forces, whether experience has disclosed ‘union unfair labor practices,’ and if so, whether legislative correction is more appropriate than self-discipline and pressure of public opinion. . . .” Id.

at 538, 549–50.

137 336 U.S. 245 (1949).

138 336 U.S. at 253. See also Giboney v. Empire Storage & Ice Co., 336 U.S. 490

(1949) (upholding state law forbidding agreements in restraint of trade as applied

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

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

First Amendment topics, “Picketing and Boycotts by Labor Unions” and “Public Issue Picketing and Parading,” supra.

1858 AMENDMENT 14—RIGHTS GUARANTEED
industry. Thus, in Munn v. Illinois,

139 the first of the “Granger Cases,”

maximum charges established by a state for Chicago grain elevator

companies were challenged, not as being confiscatory in character,

but rather as a regulation beyond the power of any state agency to

impose.140 The Court, in an opinion that was largely dictum, declared that the Due Process Clause did not operate as a safeguard

against oppressive rates, and that, if regulation was permissible,

the severity of it 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, and by 1890 141 it had fully converted the Due Process Clause

into a restriction on the power of state agencies to impose rates

that, in a judge’s estimation, were arbitrary or unreasonable. This

state of affairs continued for more than fifty years.

Prior to 1934, unless a business was “affected with a public interest,” control of its prices, rates, or conditions of service was viewed

as an unconstitutional deprivation of liberty and property without

due process of law. During the period of its application, however,

the phrase, “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 that 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: 142 “(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

139 94 U.S. 113 (1877). See also Davidson v. New Orleans, 96 U.S. 97 (1878);

Peik v. Chicago & N.W. Ry., 94 U.S. 164 (1877);

140 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.

141 Chicago, M. & St. P. Ry. v. Minnesota, 134 U.S. 418 (1890).

142 Wolff Packing Co. v. Industrial Court, 262 U.S. 522, 535–36 (1923) (citations

omitted).

AMENDMENT 14—RIGHTS GUARANTEED 1859
that this is superimposed upon them. In the language of the cases,

the owner by devoting his business to the public use, in effect grants

the public an interest in that use and subjects himself to public

regulation to the extent of that interest although the property continues to belong to its private owner and to be entitled to protection accordingly.”

Through application of this formula, the Court sustained state

laws regulating charges made by grain elevators,143 stockyards,144

and tobacco warehouses,145 as well as fire insurance rates 146 and

commissions paid to fire insurance agents.147 The Court also voided

statutes regulating business not “affected with a public interest,”

including state statutes fixing the price at which gasoline may be

sold,148 regulating the prices for which ticket brokers may resell theater tickets,149 and limiting competition in the manufacture and sale

of ice through the withholding of licenses to engage in such business.150

In the 1934 case of Nebbia v. New York,

151 however, the Court

finally shelved the concept of “a business affected with a public interest,” 152 upholding, by a vote of five-to-four, a depression-induced

New York statute fixing fluid milk prices. “Price control, like any

other form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted

143 Munn v. Illinois, 94 U.S. 113 (1877); Budd v. New York, 143 U.S. 517, 546

(1892); Brass v. North Dakota ex rel. Stoesser, 153 U.S. 391 (1894).

144 Cotting v. Kansas City Stock Yards Co., 183 U.S. 79 (1901).

145 Townsend v. Yeomans, 301 U.S. 441 (1937).

146 German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914); Aetna Insurance

Co. v. Hyde, 275 U.S. 440 (1928).

147 O’Gorman & Young v. Hartford Ins. Co., 282 U.S. 251 (1931).

148 Williams v. Standard Oil Co., 278 U.S. 235 (1929).

149 Tyson & Bro. v. Banton, 273 U.S. 418 (1927).

150 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932). See also Adams v. Tanner, 244 U.S. 590 (1917); Weaver v. Palmer Bros., 270 U.S. 402 (1926).

151 291 U.S. 502 (1934).

152 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.”

1860 AMENDMENT 14—RIGHTS GUARANTEED
interference with individual liberty.” 153 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 is to be viewed merely as an

exercise by the government of its police power, and as such is subject only to the restrictions that due process imposes on arbitrary

interference with liberty and property. “The due process clause makes

no mention of sales or of prices. . . .” 154

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

business that determines the validity of a price regulation, the Court

had little difficulty in upholding a state law prescribing the maximum commission that private employment agencies may charge. Rejecting contentions that the need for such protective legislation had

not been shown, the Court, in Olsen v. Nebraska ex rel. Western Reference and Bond Ass’n 155 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.156

Substantive Review of Price Controls.—Ironically, private businesses, once they had been found subject to price regulation, seemed

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

of public utilities who, in return for a government grant of virtually monopolistic privileges must provide continuous service, proprietors of other businesses receive no similar special advantages and

accordingly are unrestricted in their right to liquidate and close.

Owners of ordinary businesses, therefore, are at liberty to escape

the consequences of publicly imposed charges by dissolution, and

153 291 U.S. at 502. Older decisions overturning price regulation were now viewed

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

arbitrary in their operation and effect.

154 291 U.S. at 531, 532. Justice McReynolds, dissenting, labeled the controls

imposed by the challenged statute as a “fanciful scheme . . . to protect the farmer

against undue exactions by prescribing the price at which milk disposed of by him

at will may be resold!” 291 U.S. at 558. Intimating that the New York statute was

as efficacious as a safety regulation that required “householders to pour oil on their

roofs as a means of curbing the spread of fire when discovered in the neighborhood,” Justice McReynolds insisted that “this Court must have regard to the wisdom of the enactment,” and must “decide whether the means proposed have reasonable relation to something within legislative power.” 291 U.S. at 556.

155 313 U.S. 236, 246 (1941).

156 The older case of Ribnik v. McBride, 277 U.S. 350 (1928), which had invalidated similar legislation upon the now obsolete concept of a “business affected with

a public interest,” was expressly overruled. 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’s hearing argument on it.

AMENDMENT 14—RIGHTS GUARANTEED 1861
have been found less in need of protection through judicial review.

Thus, case law upholding challenges to price controls deals predominantly with governmentally imposed rates and charges for public

utilities.

In 1886, Chief Justice Waite, in the Railroad Commission Cases,

157

warned that the “power to regulate is not a power to destroy, and

. . . the State cannot . . . do that which in law amounts to a taking of property for public use without just compensation, or without due process of law.” In other words, a confiscatory rate could

not be imposed by government on a regulated entity. By treating

“due process of law” and “just compensation” as equivalents,158 the

Court 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 power and became one of eminent domain. Nevertheless, even this doctrine proved inadequate to satisfy public utilities, as it allowed courts to intervene only to prevent imposition of

a confiscatory rate, i.e., a rate so low as to be productive of a loss

and to amount to taking of property without just compensation. The

utilities sought nothing less than a judicial acknowledgment that

courts could review the “reasonableness” of legislative rates.

Although as late as 1888 the Court doubted that it possessed

the requisite power to challenge this doctrine,159 it finally acceded

to the wishes of the utilities in 1890 in Chicago, M. & St. P. Railway v. Minnesota.

160 In this case, the Court ruled that “[t]he question of the reasonableness of a rate . . . , 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 reasonable rates for the use of

its property, and such deprivation takes place in the absence of an

investigation by judicial machinery, it is deprived of the lawful use

of its property, and thus, in substance and effect, of the property

itself, without due process of law. . . .”

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

a commission as opposed to rates imposed by a legislature,161 the

Court in Reagan v. Farmers’ Loan & Trust Co.162 finally removed

157 116 U.S. 307, 331 (1886).

158 This was contrary to its earlier holding in Davidson v. New Orleans, 96 U.S.

97 (1877).

159 Dow v. Beidelman, 125 U.S. 680 (1888).

160 134 U.S. 418, 458 (1890).

161 Budd v. New York, 143 U.S. 517 (1892).

162 154 U.S. 362 (1894).

1862 AMENDMENT 14—RIGHTS GUARANTEED
all lingering doubts over the scope of judicial intervention. In Reagan, the Court declared that, “if a carrier . . . attempted to charge

a shipper an unreasonable sum,” the Court, in accordance with common law principles, would pass on the reasonableness of its rates,

and has “jurisdiction . . . to award the shipper any amount exacted . . . in excess of a reasonable rate . . . . The province of the

courts is not changed, nor the limit of judicial inquiry altered, because the legislature instead of the carrier prescribes the rates.” 163

Reiterating virtually the same principle in Smyth v. Ames,

164 the

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 further

determines whether the rate permits the utility to earn a fair return on a fair valuation of its investment.

Early Limitations on Review.—Even while reviewing the reasonableness of rates, the Court recognized some limits on judicial

review. As early as 1894, the Court asserted that “[t]he courts are

not authorized to revise or change the body of rates imposed by a

legislature or a commission; they do not determine whether one rate

is preferable to another, or what under all circumstances would be

fair and reasonable as between the carriers and the shippers; they

do not engage in any mere administrative work; but still 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

163 154 U.S. at 397. 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.

164 169 U.S. 466 (1898). Of course the validity of rates prescribed by a State for

services wholly within its limits must be determined wholly without reference to

the interstate business done by a public utility. Domestic business should not be

made to bear the losses on interstate business and vice versa. Thus a state has no

power to require the hauling of logs at a loss or at rates that are unreasonable,

even if a railroad receives adequate revenues from the intrastate long haul and the

interstate lumber haul taken together. On the other hand, in determining whether

intrastate passenger railway rates are confiscatory, all parts of the system within

the state (including sleeping, parlor, and dining cars) should be embraced in the

computation, and the unremunerative parts should not be excluded because built

primarily for interstate traffic or not required to supply local transportation needs.

See Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 434–35 (1913); Chicago, M. & St. P. Ry. v. Public Util. Comm’n, 274 U.S. 344 (1927); Groesbeck v. Duluth,

S.S. & A. Ry., 250 U.S. 607 (1919). The maxim that a legislature cannot delegate

legislative power is qualified to permit creation of administrative boards to apply to

the myriad details of rate schedules the regulatory police power of the state. To prevent a holding of invalid delegation of legislative power, the legislature must constrain the board with a certain course of procedure and certain rules of decision in

the performance of its functions, with which the agency must substantially comply

to validate its action. Wichita R.R. v. Public Util. Comm’n, 260 U.S. 48 (1922).

AMENDMENT 14—RIGHTS GUARANTEED 1863
restrain its operation.” 165 One can also infer from these early holdings a distinction between unreviewable fact questions that relate

only to the wisdom or expediency of a rate order, and reviewable

factual determinations that bear on a commission’s power to act.166

Further, the Court placed various obstacles in the path of the

complaining litigant. Thus, not only must a person challenging a

rate assume the burden of proof,167 but he must present a case of

“manifest constitutional invalidity.” 168 And, if, notwithstanding this

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

be granted.169 Moreover, even the Court was inclined to withhold

judgment on the application of a rate until its practical effect could

be surmised.170

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

initially adopted the position that it would not disturb findings of

fact insofar as such findings were supported by substantial evidence. For instance, in San Diego Land Company v. National City,

171

the Court declared that “the courts cannot, after [a legislative body]

has fairly and fully investigated and acted, by fixing what it believes to be reasonable rates, step in and say its action shall be set

aside and nullified because the courts, upon a similar investigation, have come to a different conclusion as to the reasonableness

of the rates fixed. . . . [J]udicial interference should never occur unless the case presents, clearly and beyond all doubt, such a fla165 Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362, 397 (1894). And later,

in 1910, the Court made a similar observation that courts may not, “under the guise

of exerting judicial power, usurp merely administrative functions by setting aside”

an order of the commission merely because such power was unwisely or expediently

exercised. ICC v. Illinois Cent. R.R., 215 U.S. 452, 470 (1910). This statement, made

in the context of federal ratemaking, appears to be equally applicable to judicial

review of state agency actions.

166 This distinction was accorded adequate emphasis by the Court in Louisville

& Nashville R.R. v. Garrett, 231 U.S. 298, 310–13 (1913), in which it declared that

“the appropriate question for the courts” is simply whether a “commission,” in establishing a rate, “acted within the scope of its power” and did not violate “constitutional rights . . . by imposing confiscatory requirements.” The carrier contesting the

rate was not entitled to have a court also pass upon a question of fact regarding the

reasonableness of a higher rate the carrier charged prior to the order of the commission. All that need concern a court, it said, is the fairness of the proceeding 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.

167 Des Moines Gas Co. v. Des Moines, 238 U.S. 153 (1915).

168 Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 452 (1913).

169 Knoxville v. Water Co., 212 U.S. 1 (1909).

170 Willcox v. Consolidated Gas Co., 212 U.S. 19 (1909). However, a public utility that has petitioned a commission for relief from allegedly confiscatory rates need

not await indefinitely for the commission’s decision before applying to a court for

equitable relief. Smith v. Illinois Bell Tel. Co., 270 U.S. 587 (1926).

171 174 U.S. 739, 750, 754 (1899). See also Minnesota Rate Cases (Simpson v.

Shepard), 230 U.S. 352, 433 (1913).

1864 AMENDMENT 14—RIGHTS GUARANTEED
grant attack upon the rights of property under the guise of regulations 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, later, in a similar case,172

the Court expressed even more clearly its reluctance to reexamine

ordinary factual determinations, writing, “we do not feel bound to

reexamine and weigh all the evidence . . . or to proceed according

to our independent opinion as to what were proper rates. It is enough

if we cannot say that it was impossible for a fair-minded board to

come to the result which was reached.” 173

These standards of review were, however, abruptly rejected by

the Court in Ohio Valley Water Co. v. Ben Avon Borough 174 as being no longer sufficient to satisfy the requirements of due process,

ushering in a long period during which courts substantively evaluated the reasonableness of rate settings. The U.S. Supreme Court

in Ben Avon concluded that the Pennsylvania “Supreme Court interpreted the statute as withholding from the courts power to determine the question of confiscation according to their own independent judgment . . . .” 175 Largely on the strength of this interpretation

of the applicable state statute, the Court held that, when the order

172 San Diego Land & Town Co. v. Jasper, 189 U.S. 439, 441, 442 (1903). See

also Van Dyke v. Geary, 244 U.S. 39 (1917); Georgia Ry. v. Railroad Comm’n, 262

U.S. 625, 634 (1923).

173 Moreover, in reviewing orders of the Interstate Commerce Commission, the

Court, at least in earlier years, chose to be guided by approximately the same standards it had originally formulated for examining regulations of state commissions.

The following excerpt from its holding in ICC v. Union Pacific R.R., 222 U.S. 541,

547–48 (1912) represents an adequate summation of the law as it stood prior to

1920: “[Q]uestions of fact may be involved in the determination of questions of law,

so that an order, regular on its face, may be set aside if it appears that . . . the rate

is so low as to be confiscatory . . . ; or if the Commission acted so arbitrarily and

unjustly as to fix rates contrary to evidence, or without evidence to support it; or

. . . if the authority therein involved has been exercised in such an unreasonable

manner as to cause it to be within the elementary rule that the substance, and not

the shadow, determines the validity of the exercise of the power. . . . In determining these mixed questions of law and fact, the court confines itself to the ultimate

question as to whether the Commission acted within its power. It will not consider

the expediency or wisdom of the order, or whether, on like testimony, it would have

made a similar ruling . . . [The Commission’s] conclusion, of course, is subject to

review, but when supported by evidence is accepted as final; not that its decision

. . . can be supported by a mere scintilla of proof—but the courts will not examine

the facts further than to determine whether there was substantial evidence to sustain the order.” See also ICC v. Illinois Cent. R.R., 215 U.S. 452, 470 (1910).

174 253 U.S. 287 (1920).

175 253 U.S. at 289 (the “question of confiscation” was the question whether the

rates set by the Public Service Commission were so low as to constitute confiscation). 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. In injunctive proceedings, evidence is freshly introduced, whereas in the cases received on appeal from state courts,

the evidence is found within the record.

AMENDMENT 14—RIGHTS GUARANTEED 1865
of a legislature, or of a commission, prescribing a schedule of maximum future rates is challenged as confiscatory, “the State must provide a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both

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

the due process clause, Fourteenth Amendment.” 176

History of the Valuation Question.—For almost fifty years

the Court wandered through a maze of conflicting formulas and factors for valuing public service corporation property, including “fair

value,” 177 “reproduction cost,” 178 “prudent investment,” 179 “depreciation,” 180 “going concern value and good will,” 181 “salvage value,” 182

176 253 U.S. at 289. Without departing from the ruling previously enunciated in

Louisville & Nashville R.R. Co. v. Garrett, 231 U.S. 298 (1913), that the failure of a

state to grant a statutory right of judicial appeal from a commission’s regulation

does not violate due process as long as relief is obtainable by a bill in equity for

injunction, the Court also held that the alternative remedy of injunction expressly

provided by state law did not afford an adequate opportunity for testing a confiscatory rate order. It conceded the principle stressed by the dissenting Justices that,

“[w]here a State offers a litigant the choice of two methods of judicial review, of which

one is both appropriate and unrestricted, the mere fact that the other which the

litigant elects is limited, does not amount to a denial of the constitutional right to a

judicial review.” 253 U.S. at 295.

177 Smyth v. Ames, 169 U.S. 466, 546–47 (1898) (“fair value” necessitated consideration of original cost of construction, permanent improvements, amount and market value of bonds and stock, replacement cost, probable earning capacity, and operating expenses).

178 Various valuation cases emphasized reproduction costs, i.e., the present as

compared with the original cost of construction. See, e.g., San Diego Land Co. v. National City, 174 U.S. 739, 757 (1899); San Diego Land & Town Co. v. Jasper, 189

U.S. 439, 443 (1903).

179 Missouri ex rel. Southwestern Bell Tel. Co. v. Public Serv. Comm’n, 262 U.S.

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

the risk incurred, funds to attract capital). This method would require “adoption of

the amount prudently invested as the rate base and the amount of the capital charge

as the measure of the rate of return.” As a method of valuation, the prudent investment theory was not accorded any acceptance until the Depression of the 1930s.

The sharp decline in prices that 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.

180 Knoxville v. Water Co., 212 U.S. 1, 9–10 (1909) (considering depreciation as

part of cost). Notwithstanding its early recognition as an allowable item of deduction in determining value, depreciation continued to be the subject of controversy

arising out of the difficulty of ascertaining it and of computing annual allowances to

cover the same. Indicative of such controversy was the disagreement as to whether

annual allowances shall be in such amount as will permit the replacement of equipment at current costs, i.e., present value, or at original cost. In the FPC v. Hope

Natural Gas Co. case, 320 U.S. 591, 606 (1944), the Court reversed United Railways v. West, 280 U.S. 234, 253–254 (1930), insofar as that holding rejected original

cost as the basis of annual depreciation allowances.

1866 AMENDMENT 14—RIGHTS GUARANTEED
and “past losses and gains,” 183 only to emerge from this maze in

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

deference to rate-making authorities.184 By holding in FPC v. Natural Gas Pipeline Co.185 that “[t]he Constitution does not bind ratemaking bodies to the service of any single formula or combination

of formulas,” and in FPC v. Hope Natural Gas Co.186 that “it is the

result reached not the method employed which is controlling, . . .

[that] [i]t is not the theory but the impact of the rate order which

counts, [and that] [i]f 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.187 Without surrendering the judicial

power to declare rates unconstitutional on the basis of a substantive deprivation of due process,188 the Court announced that it would

181 Des Moines Gas Co. v. Des Moines, 238 U.S. 153, 165 (1915) (finding “going

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

money, over one not thus advanced). Franchise value and good will, on the other

hand, have been consistently excluded from valuation; the latter presumably because a utility invariably enjoys a monopoly and consumers have no choice in the

matter of patronizing it. The latter proposition has been developed in the following

cases: Willcox v. Consolidated Gas Co., 212 U.S. 19 (1909); Des Moines Gas Co. v.

Des Moines, 238 U.S. 153, 163–64 (1915); Galveston Elec. Co. v. Galveston, 258 U.S.

388 (1922); Los Angeles Gas Co. v. Railroad Comm’n, 289 U.S. 287, 313 (1933).

182 Market Street Ry. v. Railroad Comm’n, 324 U.S. 548, 562, 564 (1945) (where

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

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

water company franchise has expired, but where there is no other source of supply,

its plant should be valued as actually in use rather than at what the property would

bring for some other use in case the city should build its own plant).

183 FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 590 (1942) (“The Constitution [does not] require that the losses of . . . [a] business in one year shall be restored from future earnings by the device of capitalizing the losses and adding them

to the rate base on which a fair return and depreciation allowance is to be earned”).

Nor can past losses be used to enhance the value of the property to support a claim

that rates for the future are confiscatory. Galveston Elec. Co. v. Galveston, 258 U.S.

388 (1922), any more than profits of the past can be used to sustain confiscatory

rates 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).

184 94 U.S. 113 (1877).

185 315 U.S. 575, 586 (1942).

186 320 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.

187 Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287 (1920).

188 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 “[t]he only relevant function of law [in rate controAMENDMENT 14—RIGHTS GUARANTEED 1867
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.” 189

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.” 190

versies] . . . 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 and not

the legislature. Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U.S. 418 [1890].”

189 FPC v. Hope Natural Gas Co., 320 U.S. 591, 602 (1944). See also Wisconsin

v. FPC, 373 U.S. 294, 299, 317, 326 (1963), in which 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, labeled 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).

The Court reaffirmed Hope Natural Gas’s emphasis on the bottom line: “The

Constitution within broad limits leaves the States free to decide what ratesetting

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

public.” Duquesne Light Co. v. Barasch, 488 U.S. 299, 316 (1989) (rejecting takings

challenge to Pennsylvania rule preventing utilities from amortizing costs of canceled nuclear plants).

190 FPC v. Hope Natural Gas Co., 320 U.S. 591, 603 (1944) (citing Chicago &

Grand Trunk Ry. v. Wellman, 143 U.S. 339, 345–46 (1892); and Missouri ex rel. Southwestern Bell Tel. Co. v. Public Serv. Comm’n, 262 U.S. 276, 291 (1923)).

1868 AMENDMENT 14—RIGHTS GUARANTEED
Regulation of Public Utilities and Common Carriers

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

on and the public’s interest in it, public utilities and common carriers are subject to state regulation, whether exerted directly by legislatures or under authority delegated to administrative bodies.191

But because the property of these entities remains under the full

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

of ownership in what the Court considers to be an “arbitrary” or

“unreasonable” way.192 Thus, when a street railway company lost

its franchise, the city could not simply take possession of its equipment,193 although it could 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.194 Likewise, a city

wanting to establish a lighting system of its own may not remove,

without compensation, the fixtures of a lighting company already

occupying the streets under a franchise,195 although a city may compete with a company that has no exclusive charter.196 However, a

municipal ordinance that demanded, as a condition for placing poles

and conduits in city streets, that a telegraph company carry the

city’s wires free of charge, and that required that conduits be moved

at company expense, was constitutional.197

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 that has elected to enter a state that

requires that it operate its local private pipe line as a common carrier. Such a foreign corporation is viewed as having waived its constitutional right to be secure against the imposition of conditions

that amount to a taking of property without due process of law.198

191 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 Co., 211 U.S. 210 (1908) ; Denver & R.G. R.R. v. Denver, 250 U.S. 241

(1919).

192 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).

193 Cleveland Electric Ry. v. Cleveland, 204 U.S. 116 (1907).

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

York Trust Co., 229 U.S. 123 (1913).

195 Los Angeles v. Los Angeles Gas Corp., 251 U.S. 32 (1919).

196 Newburyport Water Co. v. City of Newburyport, 193 U.S. 561 (1904). See also

Skaneateles Water Co. v. Village of Skaneateles, 184 U.S. 354 (1902); Helena Water

Works Co. v. Helena, 195 U.S. 383 (1904); Madera Water Works v. City of Madera,

228 U.S. 454 (1913).

197 Western Union Tel. Co. v. Richmond, 224 U.S. 160 (1912).

198 Pierce Oil Corp. v. Phoenix Ref. Co., 259 U.S. 125 (1922).

AMENDMENT 14—RIGHTS GUARANTEED 1869
Compulsory Expenditures: Grade Crossings, and the Like.—

Generally, the enforcement of uncompensated obedience to a regulation for the public health and safety is not an unconstitutional

taking of property in violation of due process.199 Thus, where a water company laid its lines on an ungraded street, and the applicable rule at the time of the granting of its charter compelled the

company to furnish connections at its own expense to one residing

on such a street, due process is not violated.200 Or, where a gas company laid its pipes under city streets, it may validly be obligated to

assume the cost of moving them to accommodate a municipal drainage system.201 Or, railroads may be required to help fund the elimination of grade crossings, even though commercial highway users,

who make no contribution whatsoever, benefit from such improvements.

Although the power of the state in this respect is not unlimited, and an “arbitrary” and “unreasonable” imposition on these businesses may be set aside, the Court’s modern approach to substantive due process analysis makes this possibility far less likely than

it once was. For instance, a 1935 case invalidated a requirement

that railroads share 50% of the cost of grade separation, irrespective of the value of such improvements to the railroad, suggesting

that railroads could not be required to subsidize competitive transportation modes.202 But in 1953 the Court distinguished this case,

ruling that the costs of grade separation improvements need not be

199 Norfolk Turnpike Co. v. Virginia, 225 U.S. 264 (1912) (requiring a turnpike

company to suspend tolls until the road is put in good order does not violate due

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

254 U.S. 126 (1920) (in the absence of proof that the addition will not yield a reasonable return, a railroad bridge company is not deprived of its property when it is

ordered to widen its bridge by inclusion of a pathway for pedestrians and a roadway for vehicles.); Chicago, B. & Q. R.R. v. Nebraska, 170 U.S. 57 (1898) (railroads

may be required to repair viaduct under which they operate); Chicago, B. & Q. Ry.

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

passing water for drainage through their embankment); Chicago & Alton R.R. v.

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

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

Court, 251 U.S. 22 (1919) (requirement to sprinkle street occupied by railroad.). But

see Chicago, St. P., Mo. & O. Ry. v. Holmberg, 282 U.S. 162 (1930) (due process violated by a requirement that an underground cattle-pass is be constructed, not as a

safety measure but as a convenience to farmers).

200 Consumers’ Co. v. Hatch, 224 U.S. 148 (1912). However, if pipe and telephone lines are located on a right of way owned by a pipeline company, the latter

cannot, without a denial of due process, be required to relocate such equipment at

its own expense. Panhandle Eastern Pipeline Co. v. Highway Comm’n, 294 U.S. 613

(1935).

201 New Orleans Gas Co. v. Drainage Comm’n, 197 U.S. 453 (1905).

202 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

1870 AMENDMENT 14—RIGHTS GUARANTEED
allocated solely on the basis of benefits that would accrue to railroad property.203 Although the Court cautioned that “allocation of

costs must be fair and reasonable,” it was deferential to local governmental decisions, stating that, in the exercise of the police power

to meet transportation, safety, and convenience needs of a growing

community, “the cost of such improvements may be allocated all to

the railroads.” 204

Compellable Services.—A state may require that common carriers such as railroads provide services in a manner suitable for

the convenience of the communities they serve.205 Similarly, a primary duty of a public utility is to serve all those who desire the

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

choose to serve only those portions of its territory that it finds most

profitable. Therefore, compelling a gas company to continue serving specified cities as long as it continues to do business in other

parts of the state does not constitute an unconstitutional deprivation.206 Likewise, requiring a railway to continue the service of a

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

operation is an economic drain.207 A company, however, cannot be

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

to surrender it and discontinue operations.208

crossing costs on a railroad although “near the line of reasonableness,” and reiterating that “unreasonably extravagant” requirements would be struck down).

203 Atchison, T. & S.F. Ry. v. Public Util. Comm’n, 346 U.S. 346 (1953).

204 346 U.S. at 352.

205 Atchison, T. & S. F. Ry. v. Public Utility Comm’n, 346 U.S. at 394–95 (1953).

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

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

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

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

line previously devoted exclusively to carrying freight); Lake Erie & W.R.R. v. Public Util. Comm’n, 249 U.S. 422 (1919) (obligation to restore a siding used principally

by a particular plant but available generally as a public track, and to continue, even

though not profitable by itself, a sidetrack); Western & Atlantic R.R. v. Public Comm’n,

267 U.S. 493 (1925) (same); Alton R.R. v. Illinois Commerce Comm’n, 305 U.S. 548

(1939) (obligation for upkeep of a switch track leading from its main line to industrial plants.). But see Missouri Pacific Ry. v. Nebraska, 217 U.S. 196 (1910) (requirement, without indemnification, to install switches on the application of owners of

grain elevators erected on right-of-way held void).

206 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).

207 Missouri Pacific Ry. v. Kansas, 216 U.S. 262 (1910); Chesapeake & Ohio Ry.

v. Public Serv. Comm’n, 242 U.S. 603 (1917); Fort Smith Traction Co. v. Bourland,

267 U.S. 330 (1925).

208 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.

AMENDMENT 14—RIGHTS GUARANTEED 1871
As the standard for regulation of a utility is whether a particular directive is reasonable, the question of whether a state order

requiring the provision of services is reasonable could include a consideration of the likelihood of pecuniary loss, the nature, extent and

productiveness of the carrier’s intrastate business, the character of

the service required, the public need for it, and its effect upon service already being rendered.209 An example of the kind of regulation where the issue of reasonableness would require an evaluation

of numerous practical and economic factors is one that requires railroads to lay tracks and otherwise provide the required equipment

to facilitate the connection of separate track lines.210

Generally, regulation of a utility’s service to commercial customers attracts less scrutiny 211 than do regulations intended to facilitate the operations of a competitor,212 and governmental power to

Eastern Tex. R.R., 264 U.S. 79 (1924); Broad River Co. v. South Carolina ex rel.

Daniel, 281 U.S. 537 (1930).

209 Chesapeake & Ohio Ry. v. Public Serv. Comm’n, 242 U.S. 603, 607 (1917).

210 “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 use 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 volume of business to be affected, the saving in time and expense to

the shipper, as against the cost and loss to the carrier.” Washington ex rel. Oregon

R.R. & Nav. Co. v. Fairchild, 224 U.S. 510, 528–29 (1912). See also Michigan Cent.

R.R. v. Michigan R.R. Comm’n, 236 U.S. 615 (1915); Seaboard Air Line R.R. v. Georgia R.R. Comm’n, 240 U.S. 324, 327 (1916).

211 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. Chicago, M. & St. P. Ry. v. Minneapolis Civic Ass’n, 247 U.S. 490 (1918). Nor are railroads denied due process when

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

distance. Louisville & Nashville R.R. v. Kentucky, 183 U.S. 503, 512 (1902); Missouri Pacific Ry. v. McGrew Coal Co., 244 U.S. 191 (1917). Nor is it “unreasonable”

or “arbitrary” to require a railroad to desist from demanding advance payment on

merchandise received from one carrier while it accepts merchandise of the same character at the same point from another carrier without such prepayment. Wadley Southern Ry. v. Georgia, 235 U.S. 651 (1915).

212 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

1872 AMENDMENT 14—RIGHTS GUARANTEED
regulate in the interest of safety has long been conceded.213 Requirements for service having no substantial relation to a utility’s regulated function, however, have been voided, such as requiring railroads to maintain scales to facilitate trading in cattle, or prohibiting

letting down an unoccupied upper berth on a rail car while the lower

berth was occupied.214

Imposition of Statutory Liabilities and Penalties Upon Common Carriers.—Legislators have considerable latitude to impose

legal burdens upon common carriers, as long as the carriers are not

precluded from shifting such burdens. Thus, a statute may make

an initial rail carrier,215 or the connecting or delivering carrier,216

liable to the shipper for the nondelivery of goods which results from

the fault of another, as long as the carrier has a subrogated right

to proceed against the carrier at fault. Similarly, a railroad may be

held responsible for damages to the owner of property injured by

fire caused by locomotive engines, as the statute also granted the

railroad an insurable interest in such property along its route, allowing the railroad to procure insurance against such liability.217

offered at an arbitrary connection point near its terminus by a competing road seeking to reach and use the former’s terminal facilities. Nor may a carrier be required

to deliver its cars to connecting carriers without adequate protection from loss or

undue detention or compensation for their use. Louisville & Nashville R.R. v. Stock

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

freight cars with other carriers under reasonable terms, Michigan Cent. R.R. v. Michigan R.R. Comm’n, 236 U.S. 615 (1915), and to accept cars already loaded and in

suitable condition for reshipment over its lines to points within the state. Chicago,

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

213 The following cases all concern the operation of railroads: Railroad Co. v.

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

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

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

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

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

be cheaper and better); Nashville, C. & St. L. Ry. v. Alabama, 128 U.S. 96 (1888)

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

Arkansas, 219 U.S. 453 (1911) (full crews on certain trains); St. Louis I. Mt. & So.

Ry. v. Arkansas, 240 U.S. 518 (1916) (same); Missouri Pacific R.R. v. Norwood, 283

U.S. 249 (1931) (same); Firemen v. Chicago, R.I. & P.R.R., 393 U.S. 129 (1968) (same);

Atlantic Coast Line R.R. v. Georgia, 234 U.S. 280 (1914) (specification of a type of

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

regulations); New York, N.H. & H. R.R. v. New York, 165 U.S. 628 (1897) (prohibition on the heating of passenger cars from stoves or furnaces inside or suspended

from the cars).

214 Chicago, M. & St. P. R.R. v. Wisconsin, 238 U.S. 491 (1915).

215 Chicago & N.W. Ry. v. Nye Schneider Fowler Co., 260 U.S. 35 (1922). See

also Yazoo & M.V.R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912); cf. Adams Express Co. v. Croninger, 226 U.S. 491 (1913).

216 Atlantic Coast Line R.R. v. Glenn, 239 U.S. 388 (1915).

217 St. Louis & S.F. Ry. v. Mathews, 165 U.S. 1 (1897).

AMENDMENT 14—RIGHTS GUARANTEED 1873
Equally consistent with the requirements of due process are enactments imposing on all common carriers a penalty for failure to settle

claims for freight lost or damaged in shipment within a reasonable

specified period.218

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

Court invalidated an award of $500 in liquidated damages plus reasonable attorney’s fees imposed on a carrier that had collected transportation charges in excess of established maximum rates as disproportionate. The Court also noted that the penalty was exacted under

conditions not affording the carrier an adequate opportunity to test

the constitutionality of the rates before liability attached.219 Where

the carrier did have an opportunity to challenge the reasonableness of the rate, however, the Court indicated that the validity of

the penalty imposed need not be determined by comparison with

the amount of the overcharge. Inasmuch as a penalty is imposed

as punishment for violation of law, the legislature may adjust its

amount to the public wrong rather than the private injury, and the

only limitation which the Fourteenth Amendment imposes is that

the penalty prescribed shall not be “so severe and oppressive as to

be wholly disproportionate to the offense and obviously unreasonable.” 220

Regulation of Businesses, Corporations, Professions, and

Trades

Generally.—States may impose significant regulations on businesses without violating due process. “The Constitution does not guar218 Chicago & N.W. Ry. v. Nye Schneider Fowler Co., 260 U.S. 35 (1922) (penalty imposed if claimant subsequently obtained by suit more than the amount tendered by the railroad). But see Kansas City Ry. v. Anderson, 233 U.S. 325 (1914)

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

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

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

M. & St. P. Ry. v. Polt, 232 U.S. 165 (1914) (same).

219 Missouri Pacific Ry. v. Tucker, 230 U.S. 340 (1913).

220 In accordance with this standard, a statute granting an aggrieved passenger

(who recovered $100 for an overcharge of 60 cents) the right to recover in a civil

suit not less than $50 nor more than $300 plus costs and a reasonable attorney’s

fee was upheld. St. Louis, I. Mt. & So. Ry. v. Williams, 251 U.S. 63, 67 (1919). See

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

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

for failure to so maintain them upheld); Minneapolis & St. L. Ry. v. Beckwith, 129

U.S. 26 (1889) (same); Chicago, B. & Q.R.R. v. Cram, 228 U.S. 70 (1913) (required

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

rate of speed for delivery upheld). But see Southwestern Tel. Co. v. Danaher, 238

U.S. 482 (1915) (fine of $3,600 imposed on a telephone company for suspending service of patron in arrears in accordance with established and uncontested regulations struck down as arbitrary and oppressive).

1874 AMENDMENT 14—RIGHTS GUARANTEED
antee 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.” 221 Still, the fact that the state reserves the power to amend

or repeal corporate charters does not support the taking of corporate property without due process of law, as termination of the corporate structure merely results in turning over corporate property

to the stockholders after liquidation.222

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

the Due Process Clauses, but this does not grant them an unconditional right to enter another state or to continue to do business in

it. Language in some early cases suggested that states had plenary

power to exclude or to expel a foreign corporation.223 This power is

clearly limited by the modern doctrine of the “negative” commerce

clause, which constrains states’ authority to discriminate against foreign corporations in favor of local commerce. Still, it has always

been acknowledged that states may subject corporate entry or continued operation to reasonable, non-discriminatory conditions. Thus,

for instance, a state law that requires the filing of articles with a

local official as a prerequisite to the validity of conveyances of local

realty to such corporations does not violate due process.224 In addition, statutes that require a foreign insurance company to maintain reserves computed by a specific percentage of premiums (including membership fees) received in all states,225 or to consent to direct

actions filed against it by persons injured in the host state, are valid.226

Laws Prohibiting Trusts, Restraint of Trade or Fraud.—

Even during the period when the Court was invalidating statutes

under liberty of contract principles, it recognized the right of states

221 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).

222 New Orleans Debenture Redemption Co. v. Louisiana, 180 U.S. 320 (1901).

223 National Council U.A.M. v. State Council, 203 U.S. 151, 162–63 (1906).

224 Munday v. Wisconsin Trust Co., 252 U.S. 499 (1920).

225 State Farm Ins. Co. v. Duel, 324 U.S. 154 (1945).

226 Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954). Similarly a statute requiring a foreign hospital corporation to dispose of farm land not

necessary to the conduct of their business was invalid even though the hospital, because of changed economic conditions, was unable to recoup its original investment

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

(1901).

AMENDMENT 14—RIGHTS GUARANTEED 1875
to prohibit combinations in restraint of trade.227 Thus, states could

prohibit agreements to pool and fix prices, divide net earnings, and

prevent competition in the purchase and sale of grain.228 Further,

the Court held that the Fourteenth Amendment does not preclude

a state from adopting a policy prohibiting competing corporations

from combinations, even when such combinations were induced by

good intentions and from which benefit and no injury have resulted.229 The Court also upheld a variety of statutes prohibiting

activities taken by individual businesses intended to harm competitors 230 or restrain the trade of others.231

Laws and ordinances tending to prevent frauds by requiring honest weights and measures in the sale of articles of general consumption have long been considered lawful exertions of the police power.232

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.233 Similarly, the power of a state to prescribe standard

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

prohibiting retail lumber dealers from agreeing not to purchase materials from wholesalers selling directly to consumers in the retailers’ localities upheld); Aikens v. Wisconsin, 195 U.S. 194 (1904) (law punishing combinations for “maliciously” injuring a

rival in the same business, profession, or trade upheld).

228 Smiley v. Kansas, 196 U.S. 447 (1905). See Waters Pierce Oil Co. v. Texas,

212 U.S. 86 (1909); National Cotton Oil Co. v. Texas, 197 U.S. 115 (1905), also upholding antitrust laws.

229 International Harvester Co. v. Missouri, 234 U.S. 199 (1914). See also American Machine Co. v. Kentucky, 236 U.S. 660 (1915).

230 Central Lumber Co. v. South Dakota, 226 U.S. 157 (1912) (prohibition on

intentionally destroying competition of a rival business by making sales at a lower

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

But cf. Fairmont Co. v. Minnesota, 274 U.S. 1 (1927) (invalidating on liberty of contract grounds similar statute punishing dealers in cream who pay higher prices in

one locality than in another, the Court finding no reasonable relation between the

statute’s sanctions and the anticipated evil).

231 Old Dearborn Co. v. Seagram Corp., 299 U.S. 183 (1936) (prohibition of contracts requiring that commodities identified by trademark will not be sold by the

vendee or subsequent vendees except at prices stipulated by the original vendor upheld); Pep Boys v. Pyroil, 299 U.S. 198 (1936) (same); Safeway Stores v. Oklahoma

Grocers, 360 U.S. 334 (1959) (application of an unfair sales act to enjoin a retail

grocery company from selling below statutory cost upheld, even though competitors

were selling at unlawful prices, as there is no constitutional right to employ retaliation against action outlawed by a state and appellant could enjoin illegal activity of

its competitors).

232 Schmidinger v. City of Chicago, 226 U.S. 578, 588 (1913) (citing McLean v.

Arkansas, 211 U.S. 539, 550 (1909)). See Hauge v. City of Chicago, 299 U.S. 387

(1937) (municipal ordinance requiring that commodities sold by weight be weighed

by a public weighmaster within the city valid even as applied to one delivering coal

from state-tested scales at a mine outside the city); Lemieux v. Young, 211 U.S. 489

(1909) (statute requiring merchants to record sales in bulk not made sin the regular

course of business valid); Kidd, Dater Co. v. Musselman Grocer Co., 217 U.S. 461

(1910) (same).

233 Merchants Exchange v. Missouri, 248 U.S. 365 (1919).

1876 AMENDMENT 14—RIGHTS GUARANTEED
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.234

A variety of other business regulations that tend to prevent fraud

have withstood constitutional scrutiny. Thus, a state may require

that the nature of a product be fairly set forth, despite the right of

a manufacturer to maintain secrecy as to his compounds.235 Or, a

statute providing that the purchaser of harvesting or threshing machinery for his own use shall have a reasonable time after delivery

for inspecting and testing it, and may rescind the contract if the

machinery does not prove reasonably adequate, does not violate the

Due Process Clause.236 Further, 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 the good repute

of the applicants, and permit, subject to judicial review of his findings, revocation of the license.237

The power to regulate also includes the power to forbid certain

business practices. Thus, a state may forbid the giving of options

to sell or buy any grain or other commodity at a future time.238 It

may also forbid sales on margin for future delivery,239 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.240 A prohibitive license fee upon the

use of trading stamps is not unconstitutional,241 nor is imposing criminal penalties for any deductions by purchasers from the actual weight

234 Pacific States Co. v. White, 296 U.S. 176 (1935) (administrative order prescribing the dimensions, form, and capacity of containers for strawberries and raspberries is not arbitrary as the form and dimensions bore a reasonable relation to

the protection of the buyers and the preservation in transit of the fruit); Schmidinger

v. City of Chicago, 226 U.S. 578 (1913) (ordinance fixing standard sizes is not unconstitutional); Armour & Co. v. North Dakota, 240 U.S. 510 (1916) (law that lard not

sold in bulk should be put up in containers holding one, three, or five pounds weight,

or some whole multiple of these numbers valid); Petersen Baking Co. v. Bryan, 290

U.S. 570 (1934) (regulations that imposed a rate of tolerance for the minimum weight

for a loaf of bread upheld); But cf. Burns Baking Co. v. Bryan, 264 U.S. 504 (1924)

(tolerance of only two ounces in excess of the minimum weight per loaf is unreasonable, given finding that it was impossible to manufacture good bread without frequently exceeding the prescribed tolerance).

235 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).

236 Advance-Rumely Co. v. Jackson, 287 U.S. 283 (1932).

237 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).

238 Booth v. Illinois, 184 U.S. 425 (1902).

239 Otis v. Parker, 187 U.S. 606 (1903).

240 Brodnax v. Missouri, 219 U.S. 285 (1911).

241 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).

AMENDMENT 14—RIGHTS GUARANTEED 1877
of grain, hay, seed, or coal purchased, even when such deduction is

made under a claim of custom or under a rule of a board of trade.242

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.243 A variety of regulations have

been upheld over the years. For example, state banks are not deprived of property without due process by a statute subjecting them

to assessments for a depositors’ guaranty fund.244 Also, a law requiring savings banks to turn over deposits inactive for thirty years to

the state (when the depositor cannot be found), with provision for

payment to the depositor or his heirs on establishment of the right,

does not effect an invalid taking of the property of said banks; nor

does a statute requiring banks to turn over to the protective custody of the state deposits that, depending on the nature of the deposit, have been inactive ten or twenty-five years.245

A state is acting clearly within its police power in fixing maximum rates of interest on money loaned within its border, and such

regulation is within legislative discretion if not unreasonable or arbitrary.246 Equally valid is a requirement that assignments of future wages as security for debts of less than $200, to be valid, must

be accepted in writing by the employer, consented to by the assignors, and filed in public office. Such a requirement deprives neither

the borrower nor the lender of his property without due process of

law.247

242 House v. Mayes, 219 U.S. 270 (1911).

243 Doty v. Love, 295 U.S. 64 (1935) (rights of creditors in an insolvent bank not

violated by a later statute permitting re-opening under a reorganization plan approved by the court, the liquidating officer, and by three-fourths of the creditors);

Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649 (1923) (Federal

Reserve bank not unlawfully deprived of business rights of liberty of contract by a

law which allows state banks to pay checks in exchange when presented by or through

a Federal Reserve bank, post office, or express company and when not made payable otherwise by a maker).

244 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).

245 Provident Savings Inst. v. Malone, 221 U.S. 660 (1911); Anderson Nat’l Bank

v. Luckett, 321 U.S. 233 (1944). When a bank conservator appointed pursuant to a

new statute has all the functions of a receiver under the old law, one of which is the

enforcement on behalf of depositors of stockholders’ liability, which liability the conservator can enforce as cheaply as could a receiver appointed under the pre-existing

statute, it cannot be said that the new statute, in suspending the right of a depositor to have a receiver appointed, arbitrarily deprives a depositor of his remedy or

destroys his property without the due process of law. The depositor has no property

right in any particular form of remedy. Gibbes v. Zimmerman, 290 U.S. 326 (1933).

246 Griffith v. Connecticut, 218 U.S. 563 (1910).

247 Mutual Loan Co. v. Martell, 222 U.S. 225 (1911).

1878 AMENDMENT 14—RIGHTS GUARANTEED
Insurance.—Those engaged in the insurance business 248 as well

as the business itself have been peculiarly subject to supervision

and control.249 Even during the Lochner era the Court recognized

that government may fix insurance rates and regulate the compensation of insurance agents,250 and over the years the Court has upheld a wide variety of regulation. For instance, a state may impose

a fine on “any person ‘who shall act in any manner in the negotiation or transaction of unlawful insurance . . . with a foreign insurance company not admitted to do business [within said State].’ ” 251

Or, a state may forbid life insurance companies and their agents to

engage in the undertaking business and undertakers to serve as

life insurance agents.252 Further, foreign casualty and surety insurers were not deprived of due process by a Virginia law that prohibited the making of contracts of casualty or surety insurance except

through registered agents, that required that such contracts applicable to persons or property in the state be countersigned by a registered local agent, and that prohibited such agents from sharing

more than 50% of a commission with a nonresident broker.253 And

just as all banks may be required to contribute to a depositors’ guaranty fund, so may automobile liability insurers be required to submit to the equitable apportionment among them of applicants who

are in good faith entitled to, but are financially unable to, procure

such insurance through ordinary methods.254

However, the Court has discerned some limitations to such regulations. A statute that 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.255 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

248 La Tourette v. McMaster, 248 U.S. 465 (1919); Stipich v. Insurance Co., 277

U.S. 311, 320 (1928).

249 German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914).

250 O’Gorman & Young v. Hartford Ins. Co., 282 U.S. 251 (1931).

251 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).

252 Daniel v. Family Ins. Co., 336 U.S. 220 (1949).

253 Osborn v. Ozlin, 310 U.S. 53, 68–69 (1940). Dissenting from the conclusion,

Justice Roberts declared that the plain effect of the Virginia law is to compel a nonresident to pay a Virginia resident for services that the latter does not in fact render.

254 California Auto. Ass’n v. Maloney, 341 U.S. 105 (1951).

255 Allgeyer v. Louisiana, 165 U.S. 578 (1897).

AMENDMENT 14—RIGHTS GUARANTEED 1879
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.256

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.257 No unconstitutional restraint

was imposed upon the liberty of contract of surety companies by a

statute providing that, after enactment, any bond executed for the

faithful performance of a building contract shall inure to the benefit of material men and laborers, notwithstanding any provision of

the bond to the contrary.258 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.259 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.260

Moreover, even though it had its attorney-in-fact located in Illinois, signed all its contracts there, and forwarded from there 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 that required maintenance of an office in that state and the countersigning of policies by an agent resident

therein.261 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.262

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

256 New York Life Ins. Co. v. Dodge, 246 U.S. 357 (1918).

257 National Ins. Co. v. Wanberg, 260 U.S. 71 (1922).

258 Hartford Accident Co. v. Nelson Co., 291 U.S. 352 (1934).

259 Merchants Liability Co. v. Smart, 267 U.S. 126 (1925).

260 Orient Ins. Co. v. Daggs, 172 U.S. 577 (1899) (the statute was in effect when

the contract at issue was signed).

261 Hoopeston Canning Co. v. Cullen, 318 U.S. 313 (1943).

262 German Alliance Ins. Co. v. Hale, 219 U.S. 307 (1911). See also Carroll v.

Greenwich Ins. Co., 199 U.S. 401 (1905).

1880 AMENDMENT 14—RIGHTS GUARANTEED
amount, and for a reasonable attorney’s fee is not unconstitutional

even though payment is resisted in good faith and upon reasonable

grounds.263 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.264 A provision that suicide, unless contemplated when the application for a policy was made, shall be no

defense is equally valid.265 When a cooperative life insurance association is reorganized so as to permit it to do a life insurance business of every kind, policyholders are not deprived of their property

without due process of law.266 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.267

Miscellaneous Businesses and Professions.—The practice of

medicine, using this word in its most general sense, has long been

the subject of regulation.268 A state may exclude osteopathic physicians from hospitals maintained by it or its municipalities 269 and

may regulate the practice of dentistry by prescribing qualifications

that are reasonably necessary, requiring licenses, establishing a supervisory administrative board, or prohibiting certain advertising

regardless of its truthfulness.270 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

263 Life & Casualty Co. v. McCray, 291 U.S. 566 (1934).

264 Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243 (1906).

265 Whitfield v. Aetna Life Ins. Co., 205 U.S. 489 (1907).

266 Polk v. Mutual Reserve Fund, 207 U.S. 310 (1907).

267 Neblett v. Carpenter, 305 U.S. 297 (1938).

268 McNaughton v. Johnson, 242 U.S. 344, 349 (1917). See Dent v. West Virginia, 129 U.S. 114 (1889); Hawker v. New York, 170 U.S. 189 (1898); Reetz v. Michigan, 188 U.S. 505 (1903); Watson v. Maryland, 218 U.S. 173 (1910); See also Barsky

v. Board of Regents, 347 U.S. 442 (1954), sustaining a New York law authorizing

suspension for six months of the license of a physician who had been convicted of

crime in any jurisdiction, in this instance, contempt of Congress under 2 U.S.C. § 192.

Justices Black, Douglas, and Frankfurter dissented.

269 Collins v. Texas, 223 U.S. 288 (1912); Hayman v. Galveston, 273 U.S. 414

(1927).

270 Semler v. Dental Examiners, 294 U.S. 608, 611 (1935). See also Douglas v.

Noble, 261 U.S. 165 (1923); Graves v. Minnesota, 272 U.S. 425, 427 (1926).

AMENDMENT 14—RIGHTS GUARANTEED 1881
actively and regularly employed in and responsible for the management, supervision, and operation of such pharmacy.271

Although statutes requiring pilots to be licensed 272 and setting

reasonable competency standards (e.g., that railroad engineers pass

color blindness tests) have been sustained,273 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.274 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.275

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.276

The Court has also upheld a variety of other licensing or regulatory legislation applicable to places of amusement,277 grain elevators,278 detective agencies,279 the sale of cigarettes 280 or cosmetics,281 and the resale of theater tickets.282 Restrictions on advertising

have also been upheld, including absolute bans on the advertising

of cigarettes 283 or the use of a representation of the United States

271 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.

272 Olsen v. Smith, 195 U.S. 332 (1904).

273 Nashville, C. & St. L. R.R. v. Alabama, 128 U.S. 96 (1888).

274 Smith v. Texas, 233 U.S. 630 (1914). See DeVeau v. Braisted, 363 U.S. 144,

157–60 (1960), sustaining a New York law barring from office in a longshoremen’s

union persons convicted of a felony and not thereafter pardoned or granted a good

conduct certificate from a parole board.

275 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

ex rel. Western Reference and Bond Ass’n, 313 U.S. 236 (1941), “clearly undermined

Adams v. Tanner.”

276 Ferguson v. Skrupa, 372 U.S. 726 (1963).

277 Western Turf Ass’n v. Greenberg, 204 U.S. 359 (1907).

278 W.W. Cargill Co. v. Minnesota, 180 U.S. 452 (1901).

279 Lehon v. Atlanta, 242 U.S. 53 (1916).

280 Gundling v. Chicago, 177 U.S. 183, 185 (1900).

281 Bourjois, Inc. v. Chapman, 301 U.S. 183 (1937).

282 Weller v. New York, 268 U.S. 319 (1925).

283 Packer Corp. v. Utah, 285 U.S. 105 (1932).

1882 AMENDMENT 14—RIGHTS GUARANTEED
flag on an advertising medium.284 Similarly constitutional were prohibitions on the solicitation by a layman of the business of collecting and adjusting claims,285 the keeping of private markets within

six squares of a public market,286 the keeping of billiard halls except in hotels,287 or the purchase by junk dealers of wire, copper,

and other items, without ascertaining the seller’s right to sell.288

Protection of State Resources

Oil and Gas.—A state may prohibit conduct that leads to the

waste of natural resources.289 Thus, for instance, where there is a

limited market for natural gas acquired attendant to oil production

or where the pumping of oil and gas from one location may limit

the ability of others to recover oil from a large reserve, a state may

require that production of oil be limited or prorated among producers.290 Generally, whether a system of proration is fair is a question for administrative and not judicial judgment.291 On the other

284 Halter v. Nebraska, 205 U.S. 34 (1907).

285 McCloskey v. Tobin, 252 U.S. 107 (1920).

286 Natal v. Louisiana, 139 U.S. 621 (1891).

287 Murphy v. California, 225 U.S. 623 (1912).

288 Rosenthal v. New York, 226 U.S. 260 (1912). The Court also upheld a state

law forbidding (1) solicitation of the sale of frames, mountings, or other optical appliances, (2) solicitation of the sale of eyeglasses, lenses, or prisms by use of advertising media, (3) retailers from leasing, or otherwise permitting anyone purporting

to do eye examinations or visual care to occupy space in a retail store, and (4) anyone, such as an optician, to fit lenses, or replace lenses or other optical appliances,

except upon written prescription of an optometrist or ophthalmologist licensed in

the state is not invalid. A state may treat all who deal with the human eye as members of a profession that should refrain from merchandising methods to obtain customers, and that should choose locations that reduce the temptations of commercialism; a state may also conclude that eye examinations are so critical that every change

in frame and duplication of a lens should be accompanied by a prescription. Williamson v. Lee Optical Co., 348 U.S. 483 (1955).

289 Cities Service Co. v. Peerless Co., 340 U.S. 179 (1950) (sustaining orders of

the Oklahoma Corporation Commission fixing a minimum price for gas and requiring one producer to buy gas from another producer in the same field at a dictated

price, based on a finding that low field prices for natural gas were resulting in economic and physical waste); Phillips Petroleum Co. v. Oklahoma, 340 U.S. 190 (1950).

290 This can be done regardless of whether the benefit is to the owners of oil

and gas in a common reservoir or because of the public interests involved. Thompson v. Consolidated Gas Co., 300 U.S. 55, 76–77 (1937) (citing Ohio Oil Co. v. Indiana (No. 1), 177 U.S. 190 (1900)); Lindsley v. Natural Carbonic Gas Co., 220 U.S.

61 (1911); Oklahoma v. Kansas Natural Gas Co., 221 U.S. 229 (1911). Thus, the Court

upheld against due process challenge a statute that defined waste as including, in

addition to its ordinary meaning, economic waste, surface waste, and production in

excess of transportation or marketing facilities or reasonable market demands, and

which limited each producer’s share to a prorated portion of the total production

that can be taken from the common source without waste. Champlin Rfg. Co. v. Corporation Comm’n, 286 U.S. 210 (1932).

291 Railroad Comm’n v. Rowan & Nichols Oil Co., 310 U.S. 573 (1940) (evaluating whether proration based on hourly potential is as fair as one based upon estimated recoverable reserves or some other combination of factors). See also Railroad

AMENDMENT 14—RIGHTS GUARANTEED 1883
hand, where the evidence showed that an order prorating allowed

production among several wells was actually intended to compel pipeline owners to furnish a market to those who had no pipeline connections, the order was held void as a taking of private property

for private benefit.292

A state may act to conserve resources even if it works to the

economic detriment of the producer. Thus, a state may forbid certain uses of natural gas, such as the production of carbon black,

where the gas is burned without fully using the heat therein for

other manufacturing or domestic purposes. Such regulations were

sustained even where the carbon black was more valuable than the

gas from which it was extracted, and notwithstanding the fact that

the producer had made significant investment in a plant for the manufacture of carbon black.293 Likewise, for the purpose of regulating

and adjusting coexisting rights of surface owners to underlying oil

and gas, it is within the power of a state to prohibit the operators

of wells from allowing natural gas, not conveniently necessary for

other purposes, to come to the surface unless its lifting power was

used to produce the greatest proportional quantity of oil.294

Protection of Property and Agricultural Crops.—Special precautions may be required to avoid or compensate for harm caused

by extraction of natural resources. Thus, a state may require the

filing of a bond to secure payment for damages to any persons or

property resulting from an oil and gas drilling or production operation.295 On the other hand, in Pennsylvania Coal Co. v. Mahon,

296

a Pennsylvania statute that forbade the mining of coal under private dwellings or streets of cities by a grantor that had reserved

the right to mine was viewed as too restrictive on the use of private property and hence a denial of due process and a “taking” without compensation.297 Years later, however, a quite similar Pennsylvania statute was upheld, the Court finding that the new law no

longer involved merely a balancing of private economic interests,

but instead promoted such “important public interests” as conservaComm’n v. Rowan & Nichols Oil Co., 311 U.S. 570 (1941); Railroad Comm’n v. Humble

Oil & Ref. Co., 311 U.S. 578 (1941).

292 Thompson v. Consolidated Gas Co., 300 U.S. 55 (1937).

293 Walls v. Midland Carbon Co., 254 U.S. 300 (1920). See also Henderson Co. v.

Thompson, 300 U.S. 258 (1937).

294 Bandini Co. v. Superior Court, 284 U.S. 8 (1931).

295 Gant v. Oklahoma City, 289 U.S. 98 (1933) (statute requiring bond of $200,000

per well-head, such bond to be executed, not by personal sureties, but by authorized

bonding company).

296 260 U.S. 393 (1922).

297 The “taking” jurisprudence that has stemmed from the Pennsylvania Coal

Co. v. Mahon is discussed, supra, at “Regulatory Takings,” under the Fifth Amendment.

1884 AMENDMENT 14—RIGHTS GUARANTEED
tion, protection of water supplies, and preservation of land values

for taxation.298

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.299 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.300

Water, Fish, and Game.—A statute making it unlawful for a

riparian owner to divert water into another state was held not to

deprive the property owner of due process. “The constitutional power

of the State to insist that its natural advantages shall remain unimpaired by its citizens is not dependent upon any nice estimate of

the extent of present use or speculation as to future needs. . . . What

it has it may keep and give no one a reason for its will.” 301 This

holding has since been disapproved, but on interstate commerce rather

than due process grounds.302 States may, however, enact and enforce a variety of conservation measures for the protection of watersheds.303

Similarly, a state has sufficient control over fish and wild game

found within its boundaries 304 so that it may regulate or prohibit

298 Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 488 (1987).

The Court in Pennsylvania Coal had viewed that case as relating to a “a single private house.” 260 U.S. at 413. Also distinguished from Pennsylvania Coal was a challenge to an ordinance prohibiting sand and gravel excavation near the water table

and imposing a duty to refill any existing excavation below that level. The ordinance was upheld; the fact that it prohibited a business that had been conducted

for over 30 years did not give rise to a taking in the absence of proof that the land

could not be used for other legitimate purposes. Goldblatt v. Town of Hempstead,

369 U.S. 590 (1962).

299 Miller v. Schoene, 276 U.S. 272, 277, 279 (1928).

300 Sligh v. Kirkwood, 237 U.S. 52 (1915).

301 Hudson County Water Co. v. McCarter,, 209 U.S. 349, 356–57 (1908).

302 Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982). See also City of

Altus v. Carr, 255 F. Supp. 828 (W.D. Tex.), aff’d per curiam, 385 U.S. 35 (1966).

303 See, e.g., Perley v. North Carolina, 249 U.S. 510 (1919) (upholding law requiring the removal of timber refuse from the vicinity of a watershed to prevent the

spread of fire and consequent damage to such watershed).

304 Bayside Fish Co. v. Gentry, 297 U.S. 422, 426 (1936).

AMENDMENT 14—RIGHTS GUARANTEED 1885
fishing and hunting.305 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.306 The Court has

also upheld a state law restricting a commercial reduction plant from

accepting more fish than it could process without spoilage in order

to conserve fish found within its waters, even allowing the application of such restriction to fish imported into the state from adjacent international waters.307

The Court’s early decisions rested on the legal fiction that the

states owned the fish and wild game within their borders, and thus

could reserve these possessions for use by their own citizens.308 The

Court soon backed away from the ownership fiction,309 and in Hughes

v. Oklahoma 310 it formally overruled prior case law, indicating 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.311

Subsequently, in the context of recreational rather than commercial activity, the Court reached a result more deferential to state

authority, holding that access to recreational big game hunting is

not within the category of rights protected by the Privileges or Immunities Clause, and that consequently a state could charge out-ofstaters significantly more than in-staters for a hunting license.312

Suffice it to say that similar cases involving a state’s efforts to reserve its fish and game for its own inhabitants are likely to be challenged under commerce or privileges or immunities principles, rather

than under substantive due process.

305 Manchester v. Massachusetts, 139 U.S. 240 (1891); Geer v. Connecticut, 161

U.S. 519 (1896).

306 Miller v. McLaughlin, 281 U.S. 261, 264 (1930).

307 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).

308 Geer v. Connecticut, 161 U.S. 519, 529 (1896).

309 See, e.g., Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928) (invalidating Louisiana statute prohibiting transportation outside the state of shrimp taken

in state waters, unless the head and shell had first been removed); Toomer v. Witsell,

334 U.S. 385 (1948) (invalidating law discriminating against out-of-state commercial fishermen); Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284 (1977) (state

could not discriminate in favor of its residents against out-of-state fishermen in federally licensed ships).

310 441 U.S. 322 (1979) (formally overruling Geer).

311 441 U.S. at 336, 338–39.

312 Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371 (1978).

1886 AMENDMENT 14—RIGHTS GUARANTEED
Ownership of Real Property: Rights and Limitations

Zoning and Similar Actions.—It is now well established that

states and municipalities have the police power to zone land for designated uses. Zoning authority gained judicial recognition early in

the 20th century. Initially, an analogy was drawn to public nuisance law, so that states and their municipal subdivisions could declare that specific businesses, although not nuisances per se, were

nuisances in fact and in law in particular circumstances and in particular localities.313 Thus, a state could declare the emission of dense

smoke in populous areas a nuisance and restrain it, even though

this affected the use of property and subjected the owner to the expense of compliance.314 Similarly, the Court upheld an ordinance

that prohibited brick making in a designated area, even though the

specified land contained valuable clay deposits which could not profitably be removed for processing elsewhere, was far more valuable

for brick making than for any other purpose, had been acquired before it was annexed to the municipality, and had long been used as

a brickyard.315

With increasing urbanization came a broadening of the philosophy of land-use regulation to protect not only health and safety but

also the amenities of modern living.316 Consequently, the Court has

recognized the power of government, within the loose confines of

the Due Process Clause, to zone in many ways and for many purposes. Governments may regulate the height of buildings,317 establish building setback requirements,318 preserve open spaces (through

density controls and restrictions on the numbers of houses),319 and

preserve historic structures.320 The Court will generally uphold a

challenged land-use plan unless it determines that either the overall plan is arbitrary and unreasonable with no substantial relation

to the public health, safety, or general welfare,321 or that the plan

313 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).

314 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).

315 Hadacheck v. Sebastian, 239 U.S. 394 (1915).

316 Cf. Developments in the Law: Zoning, 91 HARV. L. REV. 1427 (1978).

317 Welch v. Swasey, 214 U.S. 91 (1909).

318 Gorieb v. Fox, 274 U.S. 603 (1927).

319 Agins v. City of Tiburon, 447 U.S. 255 (1980).

320 Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978).

321 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).

AMENDMENT 14—RIGHTS GUARANTEED 1887
as applied amounts to a taking of property without just compensation.322

Applying these principles, the Court has held that the exclusion of apartment houses, retail stores, and billboards from a “residential district” in a village is a permissible exercise of municipal

power.323 Similarly, a housing ordinance in a community of singlefamily dwellings, in which any number of related persons (blood,

adoption, or marriage) could occupy a house but only two unrelated persons could do so, was sustained in the absence of any showing that it was aimed at the deprivation of a “fundamental interest.” 324 Such a fundamental interest, however, was found to be

implicated in Moore v. City of East Cleveland 325 by a “single family” zoning ordinance which defined a “family” to exclude a grandmother who had been living with her two grandsons of different

children. Similarly, black persons cannot be forbidden to occupy houses

in blocks where the greater number of houses are occupied by white

persons, or vice versa.326

In one aspect of zoning—the degree to which such decisions may

be delegated to private persons—the Court has not been consistent. Thus, for instance, it invalidated a city ordinance which conferred the power to establish building setback lines upon the owners of two thirds of the property abutting any street.327 Or, in another

case, it struck down an ordinance that 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 the

property within 400 feet of the proposed facility.328 In a decision

falling chronologically between these two, however, the Court sustained an ordinance that permitted property owners to waive a municipal restriction prohibiting the construction of billboards.329

322 See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), and

discussion of “Regulatory Taking” under the Fifth Amendment, supra

323 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

324 Village of Belle Terre v. Boraas, 416 U.S. 1 (1974).

325 431 U.S. 494 (1977). A plurality of the Court struck down the ordinance as a

violation of substantive due process, an infringement of family living arrangements

which are a protected liberty interest, id. at 498–506, while Justice Stevens concurred on the ground that the ordinance was arbitrary and unreasonable. Id. at 513.

Four Justices dissented. Id. at 521, 531, 541.

326 Buchanan v. Warley, 245 U.S. 60 (1917).

327 Eubank v. City of Richmond, 226 U.S. 137 (1912).

328 Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928).

In a later case, the Court held that the zoning power may not be delegated to a

church. Larkin v. Grendel’s Den, 459 U.S. 116 (1982) (invalidating under the Establishment Clause a state law permitting any church to block issuance of a liquor license for a facility to be operated within 500 feet of the church).

329 Thomas Cusack Co. v. City of Chicago, 242 U.S. 526 (1917). The Court thought

the case different from Eubank, because in that case the ordinance established no

1888 AMENDMENT 14—RIGHTS GUARANTEED
In its most recent decision, the Court upheld a city charter provision permitting a petition process by which a citywide referendum could be held on zoning changes and variances. The provision

required a 55% approval vote in the referendum to sustain the commission’s decision, and the Court distinguished between delegating

such authority to a small group of affected landowners and the people’s retention of the ultimate legislative power in themselves which

for convenience they had delegated to a legislative body.330

Estates, Succession, Abandoned Property.—The Due Process Clause does not prohibit a state from varying the rights of those

receiving benefits under intestate laws. Thus, the Court held that

the rights of an estate were not impaired where a New York Decedent Estate Law granted a surviving spouse the right to take as in

intestacy, despite the fact that the spouse had waived any right to

her husband’s estate before the enactment of the law. Because rights

of succession to property are of statutory creation, the Court explained, New York could have conditioned any further exercise of

testamentary power upon the giving of right of election to the surviving spouse regardless of any waiver, however formally executed.331

Even after the creation of a testamentary trust, a state retains

the power to devise new and reasonable directions to the trustee to

meet new conditions arising during its administration. For instance, the Great Depression resulted in the default of numerous

mortgages which were held by trusts, which had the affect of putting an unexpected accumulation of real property into those trusts.

Under these circumstance, the Court upheld the retroactive application of a statute reallocating distribution within these trusts, even

where the administration of the estate had already begun, and the

new statute had the effect of taking away a remainderman’s right

to judicial review of the trustee’s computation of income.332

The states have significant discretion to regulate abandoned property. For instance, states have several jurisdictional bases to allow

for the lawful application of escheat and abandoned property laws

to out-of-state corporations. Thus, application of New York’s Abanrule but gave the force of law to the decision of a narrow segment of the community,

whereas in Cusack the ordinance barred the erection of any billboards but permitted the prohibition to be modified by the persons most affected. Id. at 531.

330 City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976). Such referenda do, however, raise equal protection problems. See, e.g., Reitman v. Mulkey, 387

U.S. 369 (1967).

331 Irving Trust Co. v. Day, 314 U.S. 556, 564 (1942).

332 Demorest v. City Bank Co., 321 U.S. 36, 47–48 (1944). Under the peculiar

facts of the case, however, the remainderman’s right had been created by judicial

rules promulgated after the death of the decedent, so the case is not precedent for a

broad rule of retroactivity.

AMENDMENT 14—RIGHTS GUARANTEED 1889
doned Property Law to New York residents’ life insurance policies,

even when issued by foreign corporations, did not deprive such companies of property without due process, where the insured persons

had continued to be New York residents and the beneficiaries were

resident at the maturity date of the policies. The relationship between New York and its residents who abandon claims against foreign insurance companies, and between New York and foreign insurance companies doing business therein, is sufficiently close to give

New York jurisdiction.333 Or, in Standard Oil Co. v. New Jersey,

334

a divided Court held that due process is not violated by a state statute escheating shares of stock in a domestic corporation, including

unpaid dividends, even though the last known owners were nonresidents and the stock was issued and the dividends held in another

state. The state’s power over the debtor corporation gives it power

to seize the debts or demands represented by the stock and dividends.

A state’s wide discretion to define abandoned property and dispose of abandoned property can be seen in Texaco v. Short,

335 which

upheld an Indiana statute that terminated interests in coal, oil, gas,

or other minerals that had not been used in twenty years, and that

provided for reversion to the owner of the interest out of which the

mining interests had been carved. The “use” of a mineral interest

that could prevent its extinction included the actual or attempted

extraction of minerals, the payment of rents or royalties, and any

payment of taxes. Indeed, merely filing a claim with the local recorder would preserve the interest.336 The statute provided no notice to owners of interests, however, save for its own publication;

nor did it require surface owners to notify owners of mineral interests that the interests were about to expire.337 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 enact333 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.

334 341 U.S. 428 (1951).

335 454 U.S. 516 (1982).

336 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.

337 The act provided a grace period and specified several actions which were sufficient to avoid extinguishment. With respect to interests existing at the time of enactment, the statute provided a two-year grace period in which owners of mineral

interests that were then unused and subject to lapse could preserve those interests

by filing a claim in the recorder’s office.

1890 AMENDMENT 14—RIGHTS GUARANTEED
ment, and finding that due process did not require any actual notice to holders of unused mineral interests.338 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.” 339

Health, Safety, and Morals

Health.—Even under the narrowest concept of the police power

as limited by substantive due process, it was generally conceded that

states could exercise the power to protect the public health, safety,

and morals.340 For instance, an ordinance for incineration of garbage and refuse at a designated place as a means of protecting public health is not a taking of private property without just compensation, even though such garbage and refuse may have some elements

of value for certain purposes.341 Or, compelling property owners to

connect with a publicly maintained system of sewers and enforcing

that duty by criminal penalties does not violate the Due Process

Clause.342

There are few constitutional restrictions on the extensive state

regulations on the production and distribution of food and drugs.343

Statutes forbidding or regulating the manufacture of oleomargarine have been upheld,344 as have statutes ordering the destruction

of unsafe food 345 or confiscation of impure milk,346 notwithstanding

that, in the latter cases, such articles had a value for purposes other

than food. There also can be no question of the authority of the

state, in the interest of public health and welfare, to forbid the sale

of drugs by itinerant vendors 347 or the sale of spectacles by an establishment where a physician or optometrist is not in charge.348

Nor is it any longer possible to doubt the validity of state regula338 Generally, property owners are charged with maintaining knowledge of the

legal conditions of property ownership.

339 454 U.S. at 538. The four dissenters thought that some specific notice was

required for persons holding before enactment. Id. at 540.

340 See, e.g., Mugler v. Kansas, 123 U.S. 623, 661 (1887), and the discussion,

supra, under “The Development of Substantive Due Process.”

341 California Reduction Co. v. Sanitary Works, 199 U.S. 306 (1905).

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

343 “The power of the State to . . . prevent the production within its borders of

impure foods, unfit for use, and such articles as would spread disease and pestilence, is well established.” Sligh v. Kirkwood, 237 U.S. 52, 59–60 (1915).

344 Powell v. Pennsylvania, 127 U.S. 678 (1888); Magnano v. Hamilton, 292 U.S.

40 (1934).

345 North American Storage Co. v. City of Chicago, 211 U.S. 306 (1908).

346 Adams v. City of Milwaukee, 228 U.S. 572 (1913).

347 Baccus v. Louisiana, 232 U.S. 334 (1914).

348 Roschen v. Ward, 279 U.S. 337 (1929).

AMENDMENT 14—RIGHTS GUARANTEED 1891
tions pertaining to the administration, sale, prescription, and use

of dangerous and habit-forming drugs.349

Equally valid as police power regulations are laws forbidding

the sale of ice cream not containing a reasonable proportion of butter fat,350 of condensed milk made from skimmed milk rather than

whole milk,351 or of food preservatives containing boric acid.352 Similarly, a statute intended to prevent fraud and deception by prohibiting the sale of “filled milk” (milk to which has been added any fat

or oil other than a milk fat) is valid, at least where such milk has

the taste, consistency, and appearance of whole milk products. The

Court reasoned that filled milk is inferior to whole milk in its nutritional content and cannot be served to children as a substitute

for whole milk without producing a dietary deficiency.353

Even before the passage of the 21st Amendment, which granted

states the specific authority to regulate alcoholic beverages, the Supreme Court had found that the states have significant authority

in this regard.354 A state may declare that places where liquor is

manufactured or kept are common nuisances,355 and may even subject an innocent owner to the forfeiture of his property if he allows

others to use it for the illegal production or transportation of alcohol.356

Safety.—Regulations designed to promote public safety are also

well within a state’s authority. For instance, various measures designed to reduce fire hazards have been upheld. These include municipal ordinances that prohibit the storage of gasoline within 300

349 Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45 (1921).

350 Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916).

351 Hebe Co. v. Shaw, 248 U.S. 297 (1919).

352 Price v. Illinois, 238 U.S. 446 (1915).

353 Sage Stores Co. v. Kansas, 323 U.S. 32 (1944). Where health or fraud are

not an issue, however, police power may be more limited. Thus, a statute forbidding

the sale of bedding made with shoddy materials, even if sterilized and therefore harmless to health, was held to be arbitrary and therefore invalid. Weaver v. Palmer Bros.

Co., 270 U.S. 402 (1926).

354 “[O]n account of their well-known noxious qualities and the extraordinary

evils shown by experience commonly to be consequent upon their use, a State has

power absolutely to prohibit manufacture, gift, purchase, sale, or transportation of

intoxicating liquors within its borders without violating the guarantees of the Fourteenth Amendment.” Crane v. Campbell, 245 U.S. 304, 307 (1917), citing Bartemeyer

v. Iowa, 85 U.S. (18 Wall.) 129 (1874); Beer Co. v. Massachusetts, 97 U.S. 25, 33

(1878); Mugler v. Kansas, 123 U.S. 623 (1887); Crowley v. Christensen, 137 U.S. 86,

91 (1890); Purity Extract Co. v. Lynch, 226 U.S. 192 (1912); Clark Distilling Co. v.

Western Md. Ry., 242 U.S. 311 (1917); Seaboard Air Line Ry. v. North Carolina, 245

U.S. 298 (1917). See also Kidd v. Pearson, 128 U.S. 1 (1888); Barbour v. Georgia,

249 U.S. 454 (1919).

355 Mugler v. Kansas, 123 U.S. 623, 671 (1887).

356 Hawes v. Georgia, 258 U.S. 1 (1922); Van Oster v. Kansas, 272 U.S. 465 (1926).

1892 AMENDMENT 14—RIGHTS GUARANTEED
feet of any dwelling,357 require that all gas storage tanks with a

capacity of more than ten gallons be buried at least three feet under ground,358 or prohibit washing and ironing in public laundries

and wash houses within defined territorial limits from 10 p.m. to 6

a.m.359 A city’s demolition and removal of wooden buildings erected

in violation of regulations was also consistent with the Fourteenth

Amendment.360 Construction of property in full compliance with existing laws, however, does not confer upon the owner an immunity

against exercise of the police power. Thus, a 1944 amendment to a

Multiple Dwelling Law, requiring installation of automatic sprinklers in lodging houses of non-fireproof construction, can be applied to a lodging house constructed in 1940, even though compliance entails an expenditure of $7,500 on a property worth only

$25,000.361

States exercise extensive regulation over transportation safety.

Although state highways are used primarily for private purposes,

they are public property, and the use of a highway for financial gain

may be prohibited by the legislature or conditioned as it sees fit.362

Consequently, a state may reasonably provide that intrastate carriers who have furnished adequate, responsible, and continuous service over a given route from a specified date in the past shall be

entitled to licenses as a matter of right, but that issuance to those

whose service began later shall depend upon public convenience and

necessity.363 A state may require private contract carriers for hire

to obtain a certificate of convenience and necessity, and decline to

grant one if the service of common carriers is impaired thereby. A

state may also fix minimum rates applicable to such private carriers, which are not less than those prescribed for common carriers,

as a valid as a means of conserving highways.364 In the absence of

legislation by Congress, a state may, to protect public safety, deny

an interstate motor carrier the use of an already congested highway.365

357 Pierce Oil Corp. v. Hope, 248 U.S. 498 (1919).

358 Standard Oil Co. v. Marysville, 279 U.S. 582 (1929).

359 Barbier v. Connolly, 113 U.S. 27 (1885); Soon Hing v. Crowley, 113 U.S. 703

(1885).

360 Maguire v. Reardon, 225 U.S. 271 (1921).

361 Queenside Hills Co. v. Saxl, 328 U.S. 80 (1946).

362 Stephenson v. Binford, 287 U.S. 251 (1932).

363 Stanley v. Public Utilities Comm’n, 295 U.S. 76 (1935).

364 Stephenson v. Binford, 287 U.S. 251 (1932). But any attempt to convert private carriers into common carriers, Michigan Pub. Utils. Comm’n v. Duke, 266 U.S.

570 (1925), or to subject them to the burdens and regulations of common carriers,

without expressly declaring them to be common carriers, violates due process. Frost

Trucking Co. v. Railroad Comm’n, 271 U.S. 583 (1926); Smith v. Cahoon, 283 U.S.

553 (1931).

365 Bradley v. Public Utility Comm’n, 289 U.S. 92 (1933).

AMENDMENT 14—RIGHTS GUARANTEED 1893
In exercising its authority over its highways, a state is not limited to the raising of revenue for maintenance and reconstruction

or to regulating the manner in which vehicles shall be operated,

but may also prevent the wear and hazards due to excessive size of

vehicles and weight of load.366 No less constitutional is a municipal

traffic regulation that 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.367 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.368 Compulsory automobile insurance is so plainly valid as to present no federal constitutional

question.369

Morality.—Legislatures have wide discretion in regulating “immoral” activities. Thus, legislation suppressing prostitution370 or gambling 371 will be upheld by the Court as within the police power of a

state. Accordingly, a state statute may provide that judgment against

a party to recover illegal gambling winnings may be enforced by a

lien on the property of the owner of the building where the gambling transaction was conducted when the owner knowingly consented to the gambling.372 Similarly, a court may order a car used

in an act of prostitution forfeited as a public nuisance, even if this

works a deprivation on an innocent joint owner of the car.373 For

366 Accordingly, a statute limiting to 7,000 pounds the net load permissible for

trucks is not unreasonable. Sproles v. Binford, 286 U.S. 374 (1932).

367 Because it is the judgment of local authorities that such advertising affects

public safety by distracting drivers and pedestrians, courts are unable to hold otherwise in the absence of evidence refuting that conclusion. Railway Express Agency v.

New York, 336 U.S. 106 (1949).

368 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).

369 Ex parte Poresky, 290 U.S. 30 (1933). See also Packard v. Banton, 264 U.S.

140 (1924); Sprout v. City of 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).

370 L’Hote v. New Orleans, 177 U.S. 587 (1900).

371 Ah Sin v. Wittman, 198 U.S. 500 (1905).

372 Marvin v. Trout, 199 U.S. 212 (1905).

373 Bennis v. Michigan, 516 U.S. 442 (1996).

1894 AMENDMENT 14—RIGHTS GUARANTEED
the same reason, lotteries, including those operated under a legislative grant, may be forbidden, regardless of any particular equities.374

Vested and Remedial Rights

As the Due Process Clause protects against arbitrary deprivation of “property,” privileges or benefits that constitute property are

entitled to protection.375 Because an existing right of action to recover damages for an injury is property, that right of action is protected by the clause.376 Thus, where repeal of a provision that made

directors liable for moneys embezzled by corporate officers was applied retroactively, it deprived certain creditors of their property without due process of law.377 A person, however, 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 an effective procedure.378

Similarly, a statute creating an additional remedy for enforcing

liability does not, as applied to stockholders then holding stock, violate due process.379 Nor does a law that lifts a statute of limitations and makes possible a suit, previously barred, for the value of

certain securities. “The Fourteenth Amendment does not make an

act of state legislation void merely because it has some retrospective operation. . . . Some rules of law probably could not be changed

retroactively without hardship and oppression . . . . Assuming that

statutes of limitation, like other types of legislation, could be so manipulated that their retroactive effects would offend the constitution, certainly it cannot be said that lifting the bar of a statute of

limitation so as to restore a remedy lost through mere lapse of time

is per se an offense against the Fourteenth Amendment.” 380

374 Stone v. Mississippi, 101 U.S. 814 (1880); Douglas v. Kentucky, 168 U.S. 488

(1897).

375 See, e.g., Snowden v. Hughes, 321 U.S. 1 (1944) (right to become a candidate

for state office is a privilege only, hence an unlawful denial of such right is not a

denial of a right of “property”). Cases under the equal protection clause now mandate a different result. See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 75

(1978) (seeming to conflate due process and equal protection standards in political

rights cases).

376 Angle v. Chicago, St. Paul, M. & D. Ry., 151 U.S. 1 (1894).

377 Coombes v. Getz, 285 U.S. 434, 442, 448 (1932).

378 Gibbes v. Zimmerman, 290 U.S. 326, 332 (1933). See Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59 (1978) (limitation of common-law liability of

private industry nuclear accidents in order to encourage development of energy a

rational action, especially when combined with congressional pledge to take necessary action in event of accident; whether limitation would have been of questionable

validity in absence of pledge uncertain but unlikely).

379 Shriver v. Woodbine Bank, 285 U.S. 467 (1932).

380 Chase Securities Corp. v. Donaldson, 325 U.S. 304, 315–16 (1945).

AMENDMENT 14—RIGHTS GUARANTEED 1895
State Control over Local Units of Government

The Fourteenth Amendment does not deprive a state of the power

to determine what duties may be performed by local officers, and

whether they shall be appointed or popularly elected.381 Nor does a

statute requiring cities to indemnify owners of property damaged

by mobs or during riots result in an unconstitutional deprivation of

the property, even when the city could not have prevented the violence.382 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 that 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.383

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,384 nor may taxpayers allege any unconstitutional deprivation as a result of changes in their

tax burden attendant upon the consolidation of contiguous municipalities.385 Nor is a statute requiring counties to reimburse cities

of the first class but not cities of other classes for rebates allowed

for prompt payment of taxes in conflict with the Due Process Clause.386

Taxing Power

Generally.—It was not contemplated that the adoption of the

Fourteenth Amendment would restrain or cripple the taxing power

of the states.387 When the power to tax exists, the extent of the burden is a matter for the discretion of the lawmakers,388 and the Court

will refrain from condemning a tax solely on the ground that it is

excessive.389 Nor can the constitutionality of taxation be made to

381 Soliah v. Heskin, 222 U.S. 522 (1912); City of Trenton v. New Jersey, 262

U.S. 182 (1923). The Equal Protection Clause has been used, however, to limit a

state’s discretion with regard to certain matters. See “Fundamental Interests: The

Political Process,” infra.

382 City of Chicago v. Sturges, 222 U.S. 313 (1911).

383 Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U.S. 285, 289 (1883).

384 Michigan ex rel. Kies v. Lowrey, 199 U.S. 233 (1905).

385 Hunter v. Pittsburgh, 207 U.S. 161 (1907).

386 Stewart v. Kansas City, 239 U.S. 14 (1915).

387 Tonawanda v. Lyon, 181 U.S. 389 (1901); Cass Farm Co. v. Detroit, 181 U.S.

396 (1901). Rather, the purpose of the amendment was to extend to the residents of

the states the same protection against arbitrary state legislation affecting life, liberty, and property as was afforded against Congress by the Fifth Amendment. Southwestern Oil Co. v. Texas, 217 U.S. 114, 119 (1910).

388 Fox v. Standard Oil Co., 294 U.S. 87, 99 (1935).

389 Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935). See also Kelly v. City

of Pittsburgh, 104 U.S. 78 (1881); Chapman v. Zobelein, 237 U.S. 135 (1915); Alaska

1896 AMENDMENT 14—RIGHTS GUARANTEED
depend upon the taxpayer’s enjoyment of any special benefits from

use of the funds raised by taxation.390

Theoretically, public moneys cannot be expended for other than

public purposes. Some early cases applied this principle by invalidating taxes judged to be imposed to raise money for purely private rather than public purposes.391 However, modern notions of public purpose have expanded to the point where the limitation has

little practical import.392 Whether a use is public or private, although 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.” 393

The authority of states to tax income is “universally recognized.” 394 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 benFish 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).

390 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).

391 Loan Association v. 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).

392 Taxes levied for each of the following purposes have been held to be for a

public use: a city coal and fuel yard, Jones v. City of Portland, 245 U.S. 217 (1917),

a state bank, a warehouse, an elevator, a flour mill system, homebuilding projects,

Carmichael v. Southern Coal & Coke Co., 300 U.S. 644 (1937), a society for preventing cruelty to animals (dog license tax), Nicchia v. New York, 254 U.S. 228 (1920), a

railroad tunnel, Milheim v. Moffat Tunnel Dist., 262 U.S. 710 (1923), books for school

children attending private as well as public schools, Cochran v. Louisiana Bd. of

Educ., 281 U.S. 370 (1930), and relief of unemployment, Carmichael v. Southern Coal

& Coke Co., 301 U.S. 495, 515 (1937).

393 In applying the Fifth Amendment Due Process Clause the Court has said

that discretion as to what is a public purpose “belongs to Congress, unless the choice

is clearly wrong, a display of arbitrary power, not an exercise of judgment.” Helvering v. Davis, 301 U.S. 619, 640 (1937); United States v. Butler, 297 U.S. 1, 67 (1936).

That payment may be made to private individuals is now irrelevant. Carmichael,

301 U.S. at 518. Cf. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) (sustaining tax imposed on mine companies to compensate workers for black lung disabilities, including those contracting disease before enactment of tax, as way of spreading cost of employee liabilities).

394 New York ex rel. Cohn v. Graves, 300 U.S. 308, 313 (1937).

AMENDMENT 14—RIGHTS GUARANTEED 1897
efits.” 395 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,396 and there are also situations in which

courts have upheld retroactive application to the preceding year or

two.397

A state also has broad tax authority over wills and inheritance.

A state may apply an inheritance tax to the transmission of property by will or descent, or to the legal privilege of taking property

by devise or descent,398 although such tax must be consistent with

other due process considerations.399 Thus, an inheritance tax law,

enacted after the death of a testator but before the distribution of

his estate, constitutionally may be imposed on the shares of legatees, notwithstanding that under the law of the state in effect on

the date of such enactment, ownership of the property passed to

the legatees upon the testator’s death.400 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.401

The taxation of entities that are franchises within the jurisdiction of the governing body raises few concerns. Thus, a city ordinance imposing annual license taxes on light and power companies

does not violate the Due Process Clause merely because the city

395 300 U.S. at 313. See also Shaffer v. Carter, 252 U.S. 37, 49–52 (1920); and

Travis v. Yale & Towne Mfg. Co., 252 U.S. 60 (1920) (states may tax the income of

nonresidents derived from property or activity within the state).

396 See, e.g., Stockdale v. Insurance Companies, 87 U.S. (20 Wall.) 323 (1874);

United States v. Hudson, 299 U.S. 498 (1937); United States v. Darusmont, 449 U.S.

292 (1981).

397 Welch v. Henry, 305 U.S. 134 (1938) (upholding imposition in 1935 of tax

liability for 1933 tax year; due to the scheduling of legislative sessions, this was the

legislature’s first opportunity to adjust revenues after obtaining information of the

nature and amount of the income generated by the original tax). Because “[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.

398 Stebbins v. Riley, 268 U.S. 137, 140, 141 (1925).

399 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. Coolidge v. Long, 282 U.S. 582 (1931). The

Court has noted that insofar as retroactive taxation of vested gifts has been voided,

the justification therefor has been that “the nature or amount of the tax could not

reasonably have been anticipated by the taxpayer at the time of the particular voluntary act which the [retroactive] statute later made the taxable event . . . . Taxation . . . of a gift which . . . [the donor] might well have refrained from making had

he anticipated the tax . . . [is] thought to be so arbitrary . . . as to be a denial of

due process.” Welch v. Henry, 305 U.S. 134, 147 (1938). But where the remaindermen’s

interests are contingent and do not vest until the donor’s death subsequent to the

adoption of the statute, the tax is valid. Stebbins v. Riley, 268 U.S. 137 (1925).

400 Cahen v. Brewster, 203 U.S. 543 (1906).

401 Keeney v. New York, 222 U.S. 525 (1912).

1898 AMENDMENT 14—RIGHTS GUARANTEED
has entered the power business in competition with such companies.402 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.403

States have significant discretion in how to value real property

for tax purposes. Thus, assessment of properties for tax purposes

over real market value is allowed as merely another way of achieving an increase in the rate of property tax, and does not violate

due process.404 Likewise, land subject to mortgage may be taxed for

its full value without deduction of the mortgage debt from the valuation.405

A state also has wide discretion in how to apportion real property tax burdens. Thus, a state may defray the entire expense of

creating, developing, and improving a political subdivision either from

funds raised by general taxation, by apportioning the burden among

the municipalities in which the improvements are made, or by creating (or authorizing the creation of) tax districts to meet sanctioned outlays.406 Or, where a state statute authorizes municipal authorities to define the district to be benefitted by a street improvement

and to assess the cost of the improvement upon the property within

the district in proportion to benefits, their action in establishing the

district and in fixing the assessments on included property, cannot,

if not arbitrary or fraudulent, be reviewed under the Fourteenth

Amendment upon the ground that other property benefitted by the

improvement was not included.407

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

402 Puget Sound Co. v. Seattle, 291 U.S. 619 (1934).

403 New York Tel. Co. v. Dolan, 265 U.S. 96 (1924).

404 Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362 (1940).

405 Paddell v. City of New York, 211 U.S. 446 (1908).

406 Hagar v. Reclamation Dist., 111 U.S. 701 (1884).

407 Butters v. City of Oakland, 263 U.S. 162 (1923). It is also proper to impose a

special assessment for the preliminary expenses of an abandoned road improvement, even though the assessment exceeds the amount of the benefit which the assessors estimated the property would receive from the completed work. Missouri Pacific R.R. v. Road District, 266 U.S. 187 (1924). See also Roberts v. Irrigation Dist.,

289 U.S. 71 (1933) (an assessment to pay the general indebtedness of an irrigation

district is valid, even though in excess of the benefits received). Likewise a levy upon

all lands within a drainage district of a tax of twenty-five cents per acre to defray

preliminary expenses does not unconstitutionally take the property of landowners

within that district who may not be benefitted by the completed drainage plans. Houck

v. Little River Dist., 239 U.S. 254 (1915).

AMENDMENT 14—RIGHTS GUARANTEED 1899
such railroad violates due process,408 whereas any gains from increased traffic reasonably expected to result from a road improvement will suffice to sustain an assessment thereon.409 Also the fact

that the only use made of a lot abutting on a street improvement

is for a railway right of way does not make invalid, for lack of benefits, an assessment thereon for grading, curbing, and paving.410 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.411

Finally, a state may levy an assessment for special benefits resulting from an improvement already made 412 and may validate an assessment previously held void for want of authority.413

Jurisdiction to Tax

Generally.—The operation of the Due Process Clause as a jurisdictional limitation on the taxing power of the states has been

an issue in a variety of different contexts, but most involve one of

two basic questions. First, is there a sufficient relationship between the state exercising taxing power and the object of the exercise of that power? Second, is the degree of contact sufficient to justify the state’s imposition of a particular obligation? Illustrative of

the factual settings in which such issues arise are 1) determining

the scope of the business activity of a multi-jurisdictional entity that

is subject to a state’s taxing power; 2) application of wealth transfer taxes to gifts or bequests of nonresidents; 3) allocation of the

income of multi-jurisdictional entities for tax purposes; 4) the scope

of state authority to tax income of nonresidents; and 5) collection

of state use taxes.

The Court’s opinions in these cases have often discussed due

process and dormant commerce clause issues as if they were indistinguishable.414 A later decision, Quill Corp. v. North Dakota,

415 however, used a two-tier analysis that found sufficient contact to satisfy due process but not dormant commerce clause requirements.

In Quill,

416 the Court struck down a state statute requiring an outof-state mail order company with neither outlets nor sales represen408 Road Dist. v. Missouri Pac. R.R., 274 U.S. 188 (1927).

409 Kansas City Ry. v. Road Dist., 266 U.S. 379 (1924).

410 Louisville & Nashville R.R. v. Barber Asphalt Co., 197 U.S. 430 (1905).

411 Myles Salt Co. v. Iberia Drainage Dist., 239 U.S. 478 (1916).

412 Wagner v. Baltimore, 239 U.S. 207 (1915).

413 Charlotte Harbor Ry. v. Welles, 260 U.S. 8 (1922).

414 For discussion of the relationship between the taxation of interstate commerce and the dormant commerce clause, see Taxation, supra.

415 504 U.S. 298 (1992).

416 504 U.S. 298 (1992).

1900 AMENDMENT 14—RIGHTS GUARANTEED
tatives in the state to collect and transmit use taxes on sales to

state residents, but did so based on Commerce Clause rather than

due process grounds. Taxation of an interstate business does not

offend due process, the Court held, if that business “purposefully

avails itself of the benefits of an economic market in the [taxing]

State . . . even if it has no physical presence in the State.” 417 Thus,

Quill may be read as implying that the more stringent Commerce

Clause standard subsumes due process jurisdictional issues, and that

consequently these due process issues need no longer be separately

considered.418 This interpretation has yet to be confirmed, however,

and a detailed review of due process precedents may prove useful.

Real Property.—Even prior to the ratification of the Fourteenth Amendment, it was a settled principle that a state could not

tax land situated beyond its limits. Subsequently elaborating upon

that principle, the Court has said that, “we know of no case where

a legislature has assumed to impose a tax upon land within the

jurisdiction of another State, much less where such action has been

defended by a court.” 419 Insofar as a tax payment may be viewed

as an exaction for the maintenance of government in consideration

of protection afforded, the logic sustaining this rule is self-evident.

Tangible Personalty.—A state may tax tangible property located within its borders (either directly through an ad valorem tax

or indirectly through death taxes) irrespective of the residence of

the owner.420 By the same token, if tangible personal property makes

only occasional incursions into other states, its permanent situs re417 The Court had previously held that the requirement in terms of a benefit is

minimal. Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981), (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 Soc’y v. California Bd. of Equalization, 430 U.S. 551

(1977).

418 A physical presence within the state is necessary, however, under the Commerce Clause analysis applicable to taxation of mail order sales. See Quill Corp. v.

North Dakota, 504 U.S. at 309–19 (refusing to overrule the Commerce Clause ruling in National Bellas Hess, Inc. 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).

419 Union Transit Co. v. Kentucky, 199 U.S. 194, 204 (1905). See also Louisville

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

420 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).

AMENDMENT 14—RIGHTS GUARANTEED 1901
mains in the state of origin, and, subject to certain exceptions, is

taxable only by the latter.421 The ancient maxim, mobilia sequuntur

personam, which originated 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.” 422

Thus, when rolling stock is permanently located and used in a

business outside the boundaries of a domiciliary state, the latter

has no jurisdiction to tax it.423 Further, vessels that merely touch

briefly at numerous ports never acquire a taxable situs at any one

of them, and are taxable in the domicile of their owners or not at

all.424 Thus, where airplanes are continually in and out of a state

during the course of a tax year, the entire fleet may be taxed by

the domicile state.425

421 New York ex rel. New York Cent. R.R. v. Miller, 202 U.S. 584 (1906).

422 Wheeling Steel Corp. v. Fox, 298 U.S. 193, 209–10 (1936); Union Transit Co.

v. Kentucky, 199 U.S. 194, 207 (1905); Johnson Oil Co. v. Oklahoma, 290 U.S. 158

(1933).

423 Union Transit Co. v. Kentucky, 199 U.S. 194 (1905). Justice Black, in Central R.R. v. Pennsylvania, 370 U.S. 607, 619–20 (1962), had his “doubts about the

use of the Due Process Clause to strike down state tax laws. The modern use of due

process to invalidate state taxes rests on two doctrines: (1) that a State is without

‘jurisdiction to tax’ property beyond its boundaries, and (2) that multiple taxation of

the same property by different States is prohibited. Nothing in the language or the

history of the Fourteenth Amendment, however, indicates any intention to establish

either of these two doctrines. . . . And in the first case [Railroad Co. v. Jackson, 74

U.S. (7 Wall.) 262 (1869)] striking down a state tax for lack of jurisdiction to tax

after the passage of that Amendment neither the Amendment nor its Due Process

Clause . . . was even mentioned.” He also maintained that Justice Holmes shared

this view in Union Transit Co. v. Kentucky, 199 U.S. at 211.

424 Southern Pacific Co. v. Kentucky, 222 U.S. 63 (1911). Ships operating wholly

on the waters within one state, however, are taxable there and not at the domicile

of the owners. Old Dominion Steamship Co. v. Virginia, 198 U.S. 299 (1905).

425 Noting that an entire fleet of airplanes of an interstate carrier were “never

continuously without the [domiciliary] State during the whole tax year,” that such

airplanes also had their “home port” in the domiciliary state, and that the company

maintained its principal office therein, the Court sustained a personal property tax

applied by the domiciliary state to all the airplanes owned by the taxpayer. Northwest Airlines v. Minnesota, 322 U.S. 292, 294–97 (1944). No other state was deemed

able to accord the same protection and benefits as the taxing state in which the

taxpayer had both its domicile and its business situs. Union Transit Co. v. Kentucky, 199 U.S. 194 (1905), which disallowed the taxing of tangibles located permanently outside the domicile state, was held to be inapplicable. 322 U.S. at 295 (1944).

Instead, the case was said to be governed by New York ex rel. New York Cent. R.R.

v. Miller, 202 U.S. 584, 596 (1906). As to the problem of multiple taxation of such

airplanes, which had in fact been taxed proportionately by other states, the Court

declared that the “taxability of any part of this fleet by any other state, than Minnesota, in view of the taxability of the entire fleet by that state, is not now before us.”

Justice Jackson, in a concurring opinion, would treat Minnesota’s right to tax as

exclusively of any similar right elsewhere.

1902 AMENDMENT 14—RIGHTS GUARANTEED
Conversely, a nondomiciliary state, although it may not tax property belonging to a foreign corporation that has never come within

its borders, may levy a tax on movables that are regularly and habitually used and employed in that state. Thus, although the fact

that cars are loaded and reloaded at a refinery in a state outside

the owner’s domicile does not fix the situs of the entire fleet in that

state, the state may nevertheless tax the number of cars that on

the average are found to be present within its borders.426 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.427 Or,

a state property tax on railroads, which is measured by gross earnings apportioned to mileage, is constitutional unless it exceeds what

would be legitimate as an ordinary tax on the property valued as

part of a going concern or is relatively higher than taxes on other

kinds of property.428

Intangible Personalty.—To determine whether a state may tax

intangible personal property, the Court has applied the fiction mobilia

sequuntur personam (movable property follows the person) and has

also recognized that such property may acquire, for tax purposes, a

permanent business or commercial situs. The Court, however, has

never clearly disposed of the issue whether multiple personal property taxation of intangibles is consistent with due process. In the

case of corporate stock, however, the Court has obliquely acknowledged that the owner thereof may be taxed at his own domicile, at

the commercial situs of the issuing corporation, and at the latter’s

domicile. Constitutional lawyers speculated whether the Court would

sustain a tax by all three jurisdictions, or by only two of them. If

the latter, the question would be which two—the state of the com426 Johnson Oil Co. v. Oklahoma, 290 U.S. 158 (1933). Moreover, in assessing

that part of a railroad within its limits, a state need not treat it as an independent

line valued as if it was operated separately from the balance of the railroad. The

state may ascertain the value of the whole line as a single property and then determine the value of the part within on a mileage basis, unless there be special circumstances which distinguish between conditions in the several states. Pittsburgh C.C.

& St. L. Ry. v. Backus, 154 U.S. 421 (1894).

427 Wallace v. Hines, 253 U.S. 66 (1920). For example, the ratio of track mileage

within the taxing state to total track mileage cannot be employed in evaluating that

portion of total railway property found in the state when the cost of the lines in the

taxing state was much less than in other states and the most valuable terminals of

the railroad were located in other states. See also Fargo v. Hart, 193 U.S. 490 (1904);

Union Tank Line Co. v. Wright, 249 U.S. 275 (1919).

428 Great Northern Ry. v. Minnesota, 278 U.S. 503 (1929). If a tax reaches only

revenues derived from local operations, the fact that the apportionment formula does

not result in mathematical exactitude is not a constitutional defect. Illinois Cent.

R.R. v. Minnesota, 309 U.S. 157 (1940).

AMENDMENT 14—RIGHTS GUARANTEED 1903
mercial situs and of the issuing corporation’s domicile, or the state

of the owner’s domicile and that of the commercial situs.429

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; 430

(2) a mortgage owned and kept outside the state by a nonresident

but on land within the state; 431 (3) investments, in the form of loans

to a resident, made by a resident agent of a nonresident creditor; 432 (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

;

433 (5) membership owned by a nonresident in a domestic exchange, known as a chamber of commerce; 434 (6) membership by a

resident in a stock exchange located in another state; 435 (7) stock

held by a resident in a foreign corporation that does no business

and has no property within the taxing state; 436 (8) stock in a foreign corporation owned by another foreign corporation transacting

its business within the taxing state; 437 (9) shares owned by nonresi429 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).

430 Kirtland v. Hotchkiss, 100 U.S. 491, 498 (1879).

431 Savings Society v. Multnomah County, 169 U.S. 421 (1898).

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

433 These deposits were allowed to be subjected to a personal property tax in

the city of his residence, regardless of whether or not they are subject to tax in the

state where the business is carried onFidelity & Columbia Trust Co. v. Louisville,

245 U.S. 54 (1917). The tax is imposed for the general advantage of living within

the jurisdiction (benefit-protection theory), and may be measured by reference to the

riches of the person taxed.

434 Rogers v. Hennepin County, 240 U.S. 184 (1916).

435 Citizens Nat’l Bank v. Durr, 257 U.S. 99, 109 (1921). “Double taxation” the

Court observed “by one and the same State is not” prohibited “by the Fourteenth

Amendment; much less is taxation by two States upon identical or closely related

property interest falling within the jurisdiction of both, forbidden.”

436 Hawley v. Malden, 232 U.S. 1, 12 (1914). The Court attached no importance

to the fact that the shares were already taxed by the State in which the issuing

corporation was domiciled and might also be taxed by the State in which the stock

owner was domiciled, or at any rate did not find it necessary to pass upon the validity of the latter two taxes. The present levy was deemed to be tenable on the basis

of the benefit-protection theory, namely, “the economic advantages realized through

the protection at the place . . . [of business situs] of the ownership of rights in intangibles. . . .” The Court also added that “undoubtedly the State in which a corporation is organized may . . . [tax] all of its shares whether owned by residents or

nonresidents.”

437 First Bank Corp. v. Minnesota, 301 U.S. 234, 241 (1937). The shares represent an aliquot portion of the whole corporate assets, and the property right so represented arises where the corporation has its home, and is therefore within the taxing jurisdiction of the State, notwithstanding that ownership of the stock may also

be a taxable subject in another State.

1904 AMENDMENT 14—RIGHTS GUARANTEED
dent 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; 438(10) dividends of a corporation distributed ratably

among stockholders regardless of their residence outside the state; 439

(11) the transfer within the taxing state by one nonresident to another of stock certificates issued by a foreign corporation; 440 and

(12) promissory notes executed by a domestic corporation, although

payable to banks in other states.441

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; 442 (2) a tax,

measured by income, levied on trust certificates held by a resident,

representing interests in various parcels of land (some inside the

state and some outside), the holder of the certificates, though without a voice in the management of the property, being entitled to a

share in the net income and, upon sale of the property, to the proceeds of the sale.443

The Court also invalidated a property tax sought to be collected from a life beneficiary on the corpus of a trust composed of

property located in another state and as to which the beneficiary

had neither control nor possession, apart from the receipt of income therefrom.444 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.445 The first case, Brooke

438 Schuylkill Trust Co. v. Pennsylvania, 302 U.S. 506 (1938).

439 The Court found that all stockholders were the ultimate beneficiaries of the

corporation’s activities within the taxing State, were protected by the latter, and were

thus subject to the State’s jurisdiction. International Harvester Co. v. Department

of Taxation, 322 U.S. 435 (1944). This tax, though collected by the corporation, is on

the transfer to a stockholder of his share of corporate dividends within the taxing

State and is deducted from said dividend payments. Wisconsin Gas Co. v. United

States, 322 U.S. 526 (1944).

440 New York ex rel. Hatch v. Reardon, 204 U.S. 152 (1907).

441 Graniteville Mfg. Co. v. Query, 283 U.S. 376 (1931). These taxes, however,

were deemed to have been laid, not on the property, but upon an event, the transfer

in one instance, and execution in the latter which took place in the taxing State.

442 Buck v. Beach, 206 U.S. 392 (1907).

443 Senior v. Braden, 295 U.S. 422 (1935).

444 Brooke v. City of Norfolk, 277 U.S. 27 (1928).

445 Greenough v. Tax Assessors, 331 U.S. 486, 496–97 (1947).

AMENDMENT 14—RIGHTS GUARANTEED 1905
v. Norfolk,

446 is distinguishable by virtue of the fact that the property tax therein voided was levied upon a resident beneficiary rather

than upon a resident trustee in control of nonresident intangibles.

Also different is Safe Deposit & Trust Co. v. Virginia,

447 where a

property tax was unsuccessfully demanded of a nonresident trustee

with respect to nonresident intangibles under its control.

A state in which a foreign corporation has acquired a commercial domicile and in which it maintains its general business offices

may tax the corporation’s bank deposits and accounts receivable even

though the deposits are outside the state and the accounts receivable arise from manufacturing activities in another state. Similarly, a nondomiciliary state in which a foreign corporation did business can tax the “corporate excess” arising from property employed

and business done in the taxing state.448 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.449

Also a domiciliary state that imposes no franchise tax on a stock

fire insurance corporation may assess a tax on the full amount of

paid-in capital stock and surplus, less deductions for liabilities, notwithstanding that such domestic corporation concentrates its executive, accounting, and other business offices in New York, and maintains in the domiciliary state only a required registered office at

which local claims are handled. Despite “the vicissitudes which the

so-called ‘jurisdiction-to-tax’ doctrine has encountered,” the presumption persists that intangible property is taxable by the state of origin.450

A property tax on the capital stock of a domestic company, however, the appraisal of which includes the value of coal mined in the

446 277 U.S. 27 (1928).

447 280 U.S. 83 (1929).

448 Adams Express Co. v. Ohio, 165 U.S. 194 (1897).

449 Alpha Cement Co. v. Massachusetts, 268 U.S. 203 (1925). A domiciliary State,

however, may tax the excess of market value of outstanding capital stock over the

value of real and personal property and certain indebtedness of a domestic corporation even though this “corporate excess” arose from property located and business

done in another State and was there taxable. Moreover, this result follows whether

the tax is considered as one on property or on the franchise. Wheeling Steel Corp. v.

Fox, 298 U.S. 193 (1936). See also Memphis Gas Co. v. Beeler, 315 U.S. 649, 652

(1942).

450 Newark Fire Ins. Co. v. State Board, 307 U.S. 313, 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.

1906 AMENDMENT 14—RIGHTS GUARANTEED
taxing state but located in another state awaiting sale, deprives the

corporation of its property without due process of law.451 Also void

for the same reason is a state tax on the franchise of a domestic

ferry company that includes in the valuation of the tax the worth

of a franchise granted to the company by another state.452

Transfer (Inheritance, Estate, Gift) Taxes.—As a state has

authority to regulate transfer of property by wills or inheritance, it

may base its succession taxes upon either the transmission or receipt of property by will or by descent.453 But whatever may be the

justification of their power to levy such taxes, since 1905 the states

have consistently found themselves restricted by the rule in Union

Transit Co. v. Kentucky,

454 which precludes imposition of transfer

taxes upon tangible which are permanently located or have an actual situs outside the state.

In the case of intangibles, however, the Court has oscillated in

upholding, then rejecting, and again sustaining the levy by more

than one state of death taxes upon intangibles. Until 1930, transfer taxes upon intangibles by either the domiciliary or the situs (but

nondomiciliary) state, were with rare exceptions approved. Thus, in

Bullen v. Wisconsin,

455 the domiciliary state of the creator of a trust

was held competent to levy an inheritance tax on an out-of-state

trust fund consisting of stocks, bonds, and notes, as the settlor reserved the right to control disposition and to direct payment of income for life. The Court reasoned that such reserved powers were

the equivalent to a fee in the property. It took cognizance of the

fact that the state in which these intangibles had their situs had

also taxed the trust.456

451 Delaware, L. & W.P.R.R. v. Pennsylvania, 198 U.S. 341 (1905).

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

453 Stebbins v. Riley, 268 U.S. 137, 140–41 (1925).

454 199 U.S. 194 (1905) (property taxes). The rule was subsequently reiterated

in 1925 in Frick v. Pennsylvania, 268 U.S. 473 (1925). See also Treichler v. Wisconsin, 338 U.S. 251 (1949); City Bank Farmers’ Trust Co. v. Schnader, 293 U.S. 112

(1934). In State Tax Comm’n v. Aldrich, 316 U.S. 174, 185 (1942), however, Justice

Jackson, in dissent, asserted that a reconsideration of this principle had become timely.

455 240 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).

456 Levy of an inheritance tax by a nondomiciliary State was also sustained on

similar grounds in Wheeler v. New York, 233 U.S. 434 (1914) wherein it was held

that the presence of a negotiable instrument was sufficient to confer jurisdiction upon

the State seeking to tax its transfer.

AMENDMENT 14—RIGHTS GUARANTEED 1907
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.457 Also against

the trend was Blodgett v. Silberman,

458 in which 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.459

In the course of about two years following the Depression, the

Court handed down a group of four decisions that placed the stamp

of disapproval upon multiple transfer taxes and—by inference—

other multiple taxation of intangibles.460 The Court found that “practical considerations of wisdom, convenience and justice alike dictate the desirability of a uniform rule confining the jurisdiction to

impose death transfer taxes as to intangibles to the State of the

[owner’s] domicile.” 461 Thus, the Court proceeded to deny the right

of nondomiciliary states to tax intangibles, rejecting jurisdictional

claims founded upon such bases as control, benefit, protection or

situs. During this interval, 1930–1932, multiple transfer taxation

of intangibles came to be viewed, not merely as undesirable, but as

so arbitrary and unreasonable as to be prohibited by the Due Process Clause.

The Court has expressly overruled only one of these four decisions condemning multiple succession taxation of intangibles. In 1939,

in Curry v. McCanless, the Court announced a departure from “[t]he

doctrine, of recent origin, that the Fourteenth Amendment precludes the taxation of any interest in the same intangible in more

than one state . . . .” 462 Taking cognizance of the fact that this doctrine had never been extended to the field of income taxation or

consistently applied in the field of property taxation, the Court declared that a correct interpretation of constitutional requirements

would dictate the following conclusions: “From the beginning of our

constitutional system control over the person at the place of his domicile and his duty there, common to all citizens, to contribute to

the support of government have been deemed to afford an adequate constitutional basis for imposing on him a tax on the use

457 Rhode Island Trust Co. v. Doughton, 270 U.S. 69 (1926).

458 277 U.S. 1 (1928).

459 The Court conceded, however, that the domiciliary State could tax the transfer of books and certificates of indebtedness found in that safe deposit box as well

as the decedent’s interest in a foreign partnership.

460 First Nat’l Bank v. Maine, 284 U.S. 312 (1932); Beidler v. South Carolina

Tax Comm’n, 282 U.S. 1 (1930); Baldwin v. Missouri, 281 U.S. 586 (1930); Farmers

Loan Co. v. Minnesota, 280 U.S. 204 (1930).

461 First National Bank v. Maine, 284 U.S. 312, 330–31 (1932).

462 307 U.S. 357, 363 (1939).

1908 AMENDMENT 14—RIGHTS GUARANTEED
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

property 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 . . . .” 463

In accordance with this line of reasoning, the domicile of a decedent (Tennessee) and the state where a trust received securities

conveyed from the decedent by will (Alabama) were both allowed

to impose a tax on the transfer of these securities. “In effecting her

purposes, the testatrix 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 necessarily invoked the aid of the law of

both states, and her legatees, before they can secure and enjoy the

benefits of succession, must invoke the law of both.” 464

On the authority of Curry v. McCanless, the Court, in Pearson

v. McGraw,

465 sustained the application of an Oregon transfer tax

to intangibles handled by an Illinois trust company, although the

property was never physically present in Oregon. Jurisdiction to tax

was viewed as dependent, not on the location of the property in the

state, but on the fact that the owner was a resident of Oregon. In

Graves v. Elliott,

466 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. It is a potential source of wealth and its exercise in

463 307 U.S. at 366, 367, 368.

464 307 U.S. at 372. These statements represented a belated adoption of the views

advanced by Chief Justice Stone in dissenting or concurring opinions that 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.

465 308 U.S. 313 (1939).

466 307 U.S. 383 (1939).

AMENDMENT 14—RIGHTS GUARANTEED 1909
the case of intangibles is the appropriate subject of taxation at the

place of the domicile of the owner of the power. The relinquishment at death, in consequence of the non-exercise in life, of a power

to revoke a trust created by a decedent is likewise an appropriate

subject of taxation.” 467

The costliness of multiple taxation of estates comprising intangibles can be appreciably aggravated if one or more states find that

the decedent died domiciled within its borders. In such cases, contesting states may discover that the assets of the estate are insufficient to satisfy their claims. Thus, in Texas v. Florida,

468 the State

of Texas filed an original petition in the Supreme Court against three

other states who claimed to be the domicile of the decedent, noting

that the portion of the estate within Texas alone would not suffice

to discharge its own tax, and that its efforts to collect its tax might

be defeated by adjudications of domicile by the other states. The

Supreme Court disposed of this controversy by sustaining a finding

that the decedent had been domiciled in Massachusetts, but intimated that thereafter it would take jurisdiction in like situations

only in the event that an estate was valued less than the total of

the demands of the several states, so that the latter were confronted with a prospective inability to collect.

467 307 U.S. at 386. Consistent application of the principle enunciated in Curry

v. McCanless is also discernible in two later cases in which the Court sustained the

right of a domiciliary state to tax the transfer of intangibles kept outside its boundaries, notwithstanding that “in some instances they may be subject to taxation in

other jurisdictions, to whose control they are subject and whose legal protection they

enjoy.” Graves v. Schmidlapp, 315 U.S. 657, 661 (1942). In this case, 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 the statement in McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316, 429 (1819), that the power to tax “is an incident of sovereignty, and is coextensive with that to which it is an incident.” 315 U.S. at 660. Again, in Central Hanover

Bank Co. v. Kelly, 319 U.S. 94 (1943), the Court approved a New Jersey transfer

tax imposed on the occasion of the death of a New Jersey grantor of an irrevocable

trust despite the fact that it was executed in New York, the securities were located

in New York, and the disposition of the corpus was to two nonresident sons.

468 306 U.S. 398 (1939). Resort to the Supreme Court’s original jurisdiction was

necessary because in Worcester County 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.

1910 AMENDMENT 14—RIGHTS GUARANTEED
Corporate Privilege Taxes.—A domestic corporation may be

subjected to a privilege tax graduated according to paid-up capital

stock, even though the stock represents capital not subject to the

taxing power of the state, because the tax is levied not on property

but on the privilege of doing business in corporate form.469 However, a state cannot tax property beyond its borders under the guise

of taxing the privilege of doing an intrastate business. Therefore, a

license tax based on the authorized capital stock of an out-of-state

corporation is void,470 even though there is a maximum fee,471 unless the tax is apportioned based on property interests in the taxing state.472 On the other hand, a fee collected only once as the price

of admission to do intrastate business is distinguishable from a tax

and accordingly may be levied on an out-of-state corporation based

on the amount of its authorized capital stock.473

A municipal license tax imposed on a foreign corporation for goods

sold within and without the state, but manufactured in the city, is

not a tax on business transactions or property outside the city and

therefore does not violate the Due Process Clause.474 But a state

lacks jurisdiction to extend its privilege tax to the gross receipts of

a foreign contracting corporation for fabricating equipment outside

the taxing state, even if the equipment is later installed in the taxing state. Unless the activities that are the subject of the tax are

carried on within its territorial limits, a state is not competent to

impose such a privilege tax.475

469 Kansas City Ry. v. Kansas, 240 U.S. 227 (1916); Kansas City, M. & B.R.R. v.

Stiles, 242 U.S. 111 (1916). Similarly, the validity of a franchise tax, imposed on a

domestic corporation engaged in foreign maritime commerce and assessed upon a

proportion of the total franchise value equal to the ratio of local business done to

total business, is not impaired by the fact that the total value of the franchise was

enhanced by property and operations carried on beyond the limits of the state. Schwab

v. Richardson, 263 U.S. 88 (1923).

470 Western Union Tel. Co. v. Kansas, 216 U.S. 1 (1910); Pullman Co. v. Kansas,

216 U.S. 56 (1910); Looney v. Crane Co., 245 U.S. 178 (1917); International Paper

Co. v. Massachusetts, 246 U.S. 135 (1918).

471 Cudahy Co. v. Hinkle, 278 U.S. 460 (1929).

472 An example of such an apportioned tax is a franchise tax based on such proportion of outstanding capital stock as is represented by property owned and used

in business transacted in the taxing state. St. Louis S.W. Ry. v. Arkansas, 235 U.S.

350 (1914).

473 Atlantic Refining Co. v. Virginia, 302 U.S. 22 (1937).

474 American Mfg. Co. v. St. Louis, 250 U.S. 459 (1919). Nor does a state license

tax on the production of electricity violate the due process clause because it may be

necessary, to ascertain, as an element in its computation, the amounts delivered in

another jurisdiction. Utah Power & Light Co. v. Pfost, 286 U.S. 165 (1932). A tax on

chain stores, at a rate per store determined by the number of stores both within

and without the state is not unconstitutional as a tax in part upon things beyond

the jurisdiction of the state.

475 James v. Dravo Contracting Co., 302 U.S. 134 (1937).

AMENDMENT 14—RIGHTS GUARANTEED 1911
Individual Income Taxes.—A state may tax annually the entire net income of resident individuals from whatever source received,476 as jurisdiction is founded upon the rights and privileges

incident to domicile. A state may also tax the portion of a nonresident’s net income that derives from property owned by him within

its borders, and from any business, trade, or profession carried on

by him within its borders.477 This state power is based upon the

state’s dominion over the property he owns, or over activity from

which the income derives, and from the obligation to contribute to

the support of a government that secures the collection of such income. Accordingly, a state may tax residents on income from rents

of land located outside the state; from interest on bonds physically

outside the state and secured by mortgage upon lands physically

outside the state; 478 and from a trust created and administered in

another state and not directly taxable to the trustee.479 Further, the

fact that another state has lawfully taxed identical income in the

hands of trustees operating in that state does not necessarily destroy a domiciliary state’s right to tax the receipt of income by a

resident beneficiary.480

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,481 unless the income

attributed to the state is out of all appropriate proportion to the

business transacted in the state.482 Thus, a franchise tax on a for476 Lawrence v. State Tax Comm’n, 286 U.S. 276 (1932).

477 Shaffer v. Carter, 252 U.S. 37 (1920); Travis v. Yale & Towne Mfg. Co., 252

U.S. 60 (1920).

478 New York ex rel. Cohn v. Graves, 300 U.S. 308 (1937).

479 Maguire v. Trefy, 253 U.S. 12 (1920).

480 Guaranty Trust Co. v. Virginia, 305 U.S. 19, 23 (1938). Likewise, even though

a nonresident does no business in a state, the state may tax the profits realized by

the nonresident upon his sale of a right appurtenant to membership in a stock exchange within its borders. New York ex rel. Whitney v. Graves, 299 U.S. 366 (1937).

481 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. Moorman Mfg. Co.

v. Bair, 437 U.S. at 276–80, implied that a showing of actual multiple taxation was

a necessary predicate to a due process challenge but might not be sufficient.

482 Evidence may be submitted that tends to show that a state has applied a

method that, although fair on its face, operates so as to reach profits that are in no

sense attributable to transactions within its jurisdiction. Hans Rees’ Sons v. North

Carolina, 283 U.S. 123 (1931).

1912 AMENDMENT 14—RIGHTS GUARANTEED
eign corporation may be measured by income, not just from business within the state, but also on net income from interstate and

foreign business.483 Because the privilege granted by a state to a

foreign corporation of carrying on business supports a tax by that

state, it followed that a Wisconsin privilege dividend tax could be

applied to a Delaware corporation despite its having its principal

offices in New York, holding its meetings and voting its dividends

in New York, and drawing its dividend checks on New York bank

accounts. The tax could be imposed on the “privilege of declaring

and receiving dividends” out of income derived from property located and business transacted in Wisconsin, equal to a specified percentage of such dividends, the corporation being required to deduct

the tax from dividends payable to resident and nonresident shareholders.484

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,485 but such a tax is invalid if the

company has withdrawn all its agents from the state and has ceased

to do business there, merely continuing to receive the renewal premiums at its home office.486 Also violating due process is a state

insurance premium tax imposed on a nonresident firm doing business in the taxing jurisdiction, where the firm obtained the coverage of property within the state from an unlicenced out-of-state insurer that consummated the contract, serviced the policy, and collected

the premiums outside that taxing jurisdiction.487 However, a tax may

be imposed upon the privilege of entering and engaging in business in a state, even if the tax is a percentage of the “annual premiums to be paid throughout the life of the policies issued.” Under

483 Matson Nav. Co. v. State Board, 297 U.S. 441 (1936).

484 Wisconsin v. J.C. Penney Co., 311 U.S. 435, 448–49 (1940). Dissenting, Justice Roberts, along with Chief Justice Hughes and Justices McReynolds and Reed,

stressed the fact that the use and disbursement by the corporation at its home office of income derived from operations in many states does not depend on and cannot be controlled by, any law of Wisconsin. The act of disbursing such income as

dividends, he contended is “one wholly beyond the reach of Wisconsin’s sovereign

power, one which it cannot effectively command, or prohibit or condition.” The assumption that a proportion of the dividends distributed is paid out of earnings in

Wisconsin for the year immediately preceding payment is arbitrary and not borne

out by the facts. Accordingly, “if the exaction is an income tax in any sense it is

such upon the stockholders (many of whom are nonresidents) and is obviously bad.”

See also Wisconsin v. Minnesota Mining Co., 311 U.S. 452 (1940).

485 Equitable Life Society v. Pennsylvania, 238 U.S. 143 (1915).

486 Provident Savings Ass’n v. Kentucky, 239 U.S. 103 (1915).

487 State Bd. of Ins. v. Todd Shipyards, 370 U.S. 451 (1962).

AMENDMENT 14—RIGHTS GUARANTEED 1913
this kind of tax, a state may continue to collect even after the company’s withdrawal from the state.488

A state may lawfully extend a tax to a foreign insurance company that contracts with an automobile sales corporation in a third

state to insure customers of the automobile sales corporation against

loss of cars purchased through the automobile sales corporation, insofar as the cars go into the possession of a purchaser within the

taxing state.489 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.490 Likewise a Connecticut life

insurance corporation, licensed to do business in California, which

negotiated reinsurance contracts in Connecticut, received payment

of premiums on such contracts in Connecticut, and was liable in

Connecticut for payment of losses claimed under such contracts, 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 California residents. 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.491

Procedure in Taxation

Generally.—The Supreme Court has never decided exactly what

due process is required in the assessment and collection of general

taxes. Although the Court has 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

488 Continental Co. v. Tennessee, 311 U.S. 5, 6 (1940).

489 Palmetto Ins. Co. v. Connecticut, 272 U.S. 295 (1926).

490 St. Louis Compress Co. v. Arkansas, 260 U.S. 346 (1922).

491 Connecticut Gen. Life Ins. Co. v. Johnson, 303 U.S. 77 (1938). When policy

loans to residents are made by a local agent of a foreign insurance company, in the

servicing of which notes are signed, security taken, interest collected, and debts are

paid within the State, such credits are taxable to the company, notwithstanding that

the promissory notes evidencing such credits are kept at the home office of the insurer. Metropolitan Life Ins. Co. v. City of New Orleans, 205 U.S. 395 (1907). But

when a resident policyholder’s loan is merely charged against the reserve value of

his policy, under an arrangement for extinguishing the debt and interest thereon by

deduction from any claim under the policy, such credit is not taxable to the foreign

insurance company. Orleans Parish v. New York Life Ins. Co., 216 U.S. 517 (1910).

Premiums due from residents on which an extension has been granted by foreign

companies also are credits on which the latter may be taxed by the State of the

debtor’s domicile. Liverpool & L. & G. Ins. Co. v. Orleans Assessors, 221 U.S. 346

(1911). The mere fact that the insurers charge these premiums to local agents and

give no credit directly to policyholders does not enable them to escape this tax.

1914 AMENDMENT 14—RIGHTS GUARANTEED
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.492 Due process of law as applied to taxation does not mean

judicial process; 493 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.494 Due process is satisfied if a taxpayer is given an opportunity to test the

validity of a tax at any time before it is final, whether before a board

having a quasi-judicial character, or before a tribunal provided by

the state for such purpose.495

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 tax-payer. No right of his is, therefore,

invaded. Thus, if the tax on animals be a fixed sum per head, or on

articles a fixed sum per yard, or bushel, or gallon, there is nothing

the owner can do which can affect the amount to be collected from

him. So, if a person wishes a license to do business of a particular

kind, or at a particular place, such as keeping a hotel or a restaurant, or selling liquors, or cigars, or clothes, he has only to pay the

amount required by law and go into the business. There is no need

in such cases for notice or hearing. So, also, if taxes are imposed in

the shape of licenses for privileges, such as those on foreign corporations for doing business in the state, or on domestic corporations

for franchises, if the parties desire the privilege, they have only to

pay the amount required. In such cases there is no necessity for

notice or hearing. The amount of the tax would not be changed by

it.” 496

492 Turpin v. Lemon, 187 U.S. 51, 58 (1902); Glidden v. Harrington, 189 U.S.

255 (1903).

493 McMillen v. Anderson, 95 U.S. 37, 42 (1877).

494 Bell’s Gap R.R. v. Pennsylvania, 134 U.S. 232, 239 (1890).

495 Hodge v. Muscatine County, 196 U.S. 276 (1905).

496 Hagar v. Reclamation Dist., 111 U.S. 701, 709–10 (1884).

AMENDMENT 14—RIGHTS GUARANTEED 1915
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.” 497

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.498 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.499 Nor is there any constitutional command that notice of an assessment as well as an opportunity to contest it be given

in advance of the assessment. It is enough that all available defenses may be presented to a competent tribunal during a suit to

collect the tax and before the demand of the state for remittance

becomes final.500

However, when assessments based on the enjoyment of a special benefit are made by a political subdivision, a taxing board or

court, the property owner is entitled to be heard as to the amount

of his assessments and upon all questions properly entering into

that determination.501 The hearing need not amount to a judicial

497 111 U.S. at 710.

498 McMillen v. Anderson, 95 U.S. 37, 42 (1877).

499 State Railroad Tax Cases, 92 U.S. 575, 610 (1876).

500 Nickey v. Mississippi, 292 U.S. 393, 396 (1934). See also Clement Nat’l Bank

v. Vermont, 231 U.S. 120 (1913). A hearing before judgment, with full opportunity to

submit evidence and arguments being all that can be adjudged vital, it follows that

rehearings and new trials are not essential to due process of law. Pittsburgh C.C. &

St. L. Ry. v. Backus, 154 U.S. 421 (1894). One hearing is sufficient to constitute due

process, Michigan Central R.R. v. Powers, 201 U.S. 245, 302 (1906), and the requirements of due process are also met if a taxpayer, who had no notice of a hearing,

does receive notice of the decision reached there and is privileged to appeal it and,

on appeal, to present evidence and be heard on the valuation of his property. Pittsburgh C.C. & St. L. Ry. v. Board of Pub. Works, 172 U.S. 32, 45 (1898).

501 St. Louis & K.C. 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).

1916 AMENDMENT 14—RIGHTS GUARANTEED
inquiry,502 although a mere opportunity to submit objections in writing, without the right of personal appearance, is not sufficient.503

Generally, if an assessment for a local improvement is made in accordance with a fixed rule prescribed by legislative act, the property owner is not entitled to be heard in advance on the question

of benefits.504 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.505 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.506

More specifically, where the mode of assessment resolves itself

into a mere mathematical calculation, there is no necessity for a

hearing.507 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.508 In contrast, when an attempt is made to

cast upon particular property a certain proportion of the construc502 Tonawanda v. Lyon, 181 U.S. 389, 391 (1901).

503 Londoner v. City of Denver, 210 U.S. 373 (1908).

504 Withnell v. Ruecking Constr. Co., 249 U.S. 63, 68 (1919); Browning v. Hooper,

269 U.S. 396, 405 (1926). Likewise, the committing to a board of county supervisors

of authority to determine, without notice or hearing, when repairs to an existing

drainage system are necessary cannot be said to deny due process of law to landowners in the district, who, by statutory requirement, are assessed for the cost thereof

in proportion to the original assessment. Breiholz v. Board of Supervisors, 257 U.S.

118 (1921).

505 Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 168, 175 (1896); Browning v. Hooper, 269 U.S. 396, 405 (1926).

506 Utley v. Petersburg, 292 U.S. 106, 109 (1934); French v. Barber Asphalt Paving Co., 181 U.S. 324, 341 (1901). See also Soliah v. Heskin, 222 U.S. 522 (1912).

Nor can he rightfully complain because the statute renders conclusive, after a hearing, the determination as to apportionment by the same body which levied the assessment. Hibben v. Smith, 191 U.S. 310, 321 (1903).

507 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

percent. Bi-Metallic Co. v. Colorado, 239 U.S. 441 (1915).

508 City of Detroit v. Parker, 181 U.S. 399 (1901).

AMENDMENT 14—RIGHTS GUARANTEED 1917
tion cost of a sewer not calculated by any mathematical formula,

the taxpayer has a right to be heard.509

Collection of Taxes.—States may undertake a variety of methods to collect taxes. For instance, collection of an inheritance tax

may be expedited by a statute requiring the sealing of safe deposit

boxes for at least ten days after the death of the renter and obliging the lessor to retain assets found therein sufficient to pay the

tax that may be due the state.510 A state may compel retailers to

collect such gasoline taxes from consumers and, under penalty of a

fine for delinquency, to remit monthly the amounts thus collected.511 In collecting personal income taxes, most states require

employers to deduct and withhold the tax from the wages of employees.512

States may also use various procedures to collect taxes from prior

tax years. To reach property that has escaped taxation, a state may

tax estates of decedents for a period prior to death and grant proportionate deductions for all prior taxes that the personal representative can prove to have been paid.513 In addition, the Court found

no violation of property rights when a state asserts a prior lien against

trucks repossessed by a vendor from a carrier (1) accruing from the

operation by the carrier of trucks not sold by the vendors, either

before or during the time the carrier operated the vendors’ trucks,

or (2) arising from assessments against the carrier, after the trucks

were repossessed, but based upon the carrier’s operations preceding such repossession. Such lien need not be limited to trucks owned

by the carrier because the wear on the highways occasioned by the

carrier’s operation is in no way altered by the vendor’s retention of

title.514

As a state may provide in advance that taxes will bear interest

from the time they become due, it may with equal validity stipulate that taxes which have become delinquent will bear interest from

the time the delinquency commenced. Further, a state may adopt

new remedies for the collection of taxes and apply these remedies

509 Paulsen v. Portland, 149 U.S. 30, 38 (1893).

510 National Safe Deposit Co. v. Stead, 232 U.S. 58 (1914).

511 Pierce Oil Corp. v. Hopkins, 264 U.S. 137 (1924). Likewise, a tax on the tangible personal property of a nonresident owner may be collected from the custodian

or possessor of such property, and the latter, as an assurance of reimbursement, may

be granted a lien on such property. Carstairs v. Cochran, 193 U.S. 10 (1904); Hannis Distilling Co. v. Baltimore, 216 U.S. 285 (1910).

512 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 been viewed as an unreasonable regulation of the conduct of business. Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 75, 76 (1920).

513 Bankers Trust Co. v. Blodgett, 260 U.S. 647 (1923).

514 International Harvester Corp. v. Goodrich, 350 U.S. 537 (1956).

1918 AMENDMENT 14—RIGHTS GUARANTEED
to taxes already delinquent.515 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.516 Nor is a foreign insurance company denied due

process of law when its personal property is distrained to satisfy

unpaid taxes.517

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.518 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.519 On the other hand, although 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,520 a judgment imposing personal liability

against a nonresident taxpayer over whom the state court acquired

no jurisdiction is void.521 Apart from such restraints, however, a state

is free to adopt new remedies for the collection of taxes and even to

apply new remedies to taxes already delinquent.522

Sufficiency and Manner of Giving Notice.—Notice of tax assessments or liabilities, insofar as it is required, may be either personal, by publication, by statute fixing the time and place of hearing,523 or by delivery to a statutorily designated agent.524 As regards

land, “where the State . . . [desires] to sell land for taxes upon proceedings to enforce a lien for the payment thereof, it may proceed

directly against the land within the jurisdiction of the court, and a

notice which permits all interested, who are ‘so minded,’ to ascertain that it is to be subjected to sale to answer for taxes, and to

515 League v. Texas, 184 U.S. 156 (1902).

516 Palmer v. McMahon, 133 U.S. 660, 669 (1890).

517 Scottish Union & Nat’l Ins. Co. v. Bowland, 196 U.S. 611 (1905).

518 King v. Mullins, 171 U.S. 404 (1898); Chapman v. Zobelein, 237 U.S. 135

(1915).

519 Leigh v. Green, 193 U.S. 79 (1904).

520 Davidson v. City of New Orleans, 96 U.S. 97, 107 (1878).

521 Dewey v. City of Des Moines, 173 U.S. 193 (1899).

522 League v. Texas, 184 U.S. 156, 158 (1902). See also Straus v. Foxworth, 231

U.S. 162 (1913).

523 Londoner v. City of 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).

524 A state statute may designate a corporation as the agent of a nonresident

stockholder to receive notice and to represent him in proceedings for correcting assessment. Corry v. Baltimore, 196 U.S. 466, 478 (1905).

AMENDMENT 14—RIGHTS GUARANTEED 1919
appear and be heard, whether to be found within the jurisdiction

or not, is due process of law within the Fourteenth Amendment. . . .” In fact, compliance with statutory notice requirements

combined with actual notice to owners of land can be sufficient in

an in rem case, even if there are technical defects in such notice.525

Whether statutorily required notice is sufficient may vary with

the circumstances. Thus, where a taxpayer was not legally competent, no guardian had been appointed and town officials were aware

of these facts, notice of a foreclosure was defective, even though the

tax delinquency was mailed to her, published in local papers, and

posted in the town post office.526 On the other hand, due process

was not denied to appellants who were unable to avert foreclosure

on certain trust lands (based on liens for unpaid water charges) because their own bookkeeper failed to inform them of the receipt of

mailed notices.527

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.528 Requirements of due process are similarly violated by a statute that

limits a taxpayer’s right to challenge an assessment to cases of fraud

or corruption,529 and by a state tribunal that prevents the recovery

of taxes imposed in violation of the Constitution and laws of the

United States by invoking a state law that allows suits to recover

taxes alleged to have been assessed illegally only if the taxes had

been paid at the time and in the manner provided by such law.530

In the case of a tax held unconstitutional as a discrimination against

525 Leigh v. Green, 193 U.S. 79, 92–93 (1904). Thus, an assessment for taxes

and a notice of sale when such taxes are delinquent will be sustained as long as

there is a description of the land and the owner knows that the property so described is his, even if that description is not technically correct. Ontario Land Co. v.

Yordy, 212 U.S. 152 (1909). Where tax proceedings are in rem, owners are bound to

take notice thereof, and to pay taxes on their property, even if the land is assessed

to unknown or other persons. Thus, if an owner stands by and sees his property

sold for delinquent taxes, he is not thereby wrongfully deprived of his property. Id.

See also Longyear v. Toolan, 209 U.S. 414 (1908).

526 Covey v. Town of Somers, 351 U.S. 141 (1956).

527 Nelson v. New York City, 352 U.S. 103 (1956). This conclusion was unaffected by the disparity between the value of the land taken and the amount owed

the city. Having issued appropriate notices, the city cannot be held responsible for

the negligence of the bookkeeper and the managing trustee in overlooking arrearages on tax bills, nor is it obligated to inquire why appellants regularly paid real

estate taxes on their property.

528 Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930).

529 Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907).

530 Carpenter v. Shaw, 280 U.S. 363 (1930). See also Ward v. Love County, 253

U.S. 17 (1920). In this as in other areas, the state must provide procedural safeguards against imposition of an unconstitutional tax. These procedures need not apply predeprivation, but a state that denies predeprivation remedy by requiring that

tax payments be made before objections are heard must provide a postdeprivation

1920 AMENDMENT 14—RIGHTS GUARANTEED
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.531

Laches.—Persons failing to avail themselves of an opportunity

to object and be heard cannot thereafter complain of assessments

as arbitrary and unconstitutional.532 Likewise a car company that

failed to report its gross receipts, as required by statute, has no

further right to contest the state comptroller’s estimate of those receipts and his adding to his estimate the 10 percent penalty permitted by law.533

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.534

Fundamental Rights (Noneconomic Substantive Due

Process)

A counterpart to the now-discredited economic substantive due

process, noneconomic substantive due process is still vital today. The

concept has come to include disparate lines of cases, and various

labels have been applied to the rights protected, including “fundamental rights,” “privacy rights,” “liberty interests” and “incorporated rights.” The binding principle of these cases is that they involve rights so fundamental that the courts must subject any legislation

infringing on them to close scrutiny. This analysis, criticized by some

for being based on extra-constitutional precepts of natural law,535

serves as the basis for some of the most significant constitutional

remedy. McKesson Corp. v. Florida Alcohol & Tobacco Div., 496 U.S. 18 (1990). See

also Reich v. Collins, 513 U.S. 106 (1994) (violation of due process to hold out a

post-deprivation remedy for unconstitutional taxation and then, after the disputed

taxes had been paid, to declare that no such remedy exists); Newsweek, Inc. v. Florida

Dep’t of Revenue, 522 U.S. 442 (1998) (per curiam) (violation of due process to limit

remedy to one who pursued pre-payment of tax, where litigant reasonably relied on

apparent availability of post-payment remedy).

531 Carpenter v. Shaw, 280 U.S. 363 (1930).

532 Farncomb v. Denver, 252 U.S. 7 (1920).

533 Pullman Co. v. Knott, 235 U.S. 23 (1914).

534 See analysis under “National Eminent Domain Power,” Fifth Amendment, supra.

535 See, e.g., RAOUL BERGER,GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (Cambridge: 1977).

AMENDMENT 14—RIGHTS GUARANTEED 1921
holdings of our time. For instance, the application of the Bill of Rights

to the states, seemingly uncontroversial today, is based not on constitutional text, but on noneconomic substantive due process and

the “incorporation” of fundamental rights.536 Other noneconomic due

process holdings, however, such as the cases establishing the right

of a woman to have an abortion,537 remain controversial.

Determining Noneconomic Substantive Due Process

Rights.—More so than other areas of law, noneconomic substantive due process seems to have started with few fixed precepts. Were

the rights being protected property rights (and thus really protected by economic due process) or were they individual liberties?

What standard of review needed to be applied? What were the parameters of such rights once identified? For instance, did a right of

“privacy” relate to protecting physical spaces such as one’s home,

or was it related to the issue of autonomy to make private, intimate decisions? Once a right was identified, often using abstract

labels, how far could such an abstraction be extended? Did protecting the “privacy” of the decisions whether to have a family also include the right to make decisions regarding sexual intimacy? Although many of these issues have been resolved, others remain.

One of the earliest formulations of noneconomic substantive due

process was the right to privacy. This right was first proposed by

Samuel Warren and Louis Brandeis in an 1890 Harvard Law Review article 538 as a unifying theme to various common law protections of the “right to be left alone,” including the developing laws

of nuisance, libel, search and seizure, and copyright. According to

the authors, “the right to life has come to mean the right to enjoy

life,—the right to be let alone . . . . This development of the law

was inevitable. The intense intellectual and emotional life, and the

heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure,

and profit of life lay in physical things. Thoughts, emotions, and

sensations demanded legal recognition, and the beautiful capacity

for growth which characterizes the common law enabled the judges

to afford the requisite protection, without the interposition of the

legislature.”

The concepts put forth in this article, which appeared to relate

as much to private intrusions on persons as to intrusions by government, reappeared years later in a dissenting opinion by Justice

536 See Bill of Rights, “Fourteenth Amendment,” supra.

537 See Roe v. Wade, 410 U.S. 113, 164 (1973).

538 Warren and Brandeis, The Right of Privacy, 4 Harv. L. Rev. 193 (1890).

1922 AMENDMENT 14—RIGHTS GUARANTEED
Brandeis regarding the Fourth Amendment.539 Then, in the 1920s,

at the heyday of economic substantive due process, the Court ruled

in two cases that, although nominally involving the protection of

property, foreshadowed the rise of the protection of noneconomic interests. In Meyer v. Nebraska,

540 the Court struck down a state law

forbidding schools from teaching any modern foreign language to

any child who had not successfully finished the eighth grade. Two

years later, in Pierce v. Society of Sisters,

541 the Court declared it

unconstitutional to require public school education of children aged

eight to sixteen. The statute in Meyer was found to interfere with

the property interest of the plaintiff, a German teacher, in pursuing his occupation, while the private school plaintiffs in Pierce were

threatened with destruction of their businesses and the values of

their properties.542 Yet in both cases the Court also permitted the

plaintiffs to represent the interests of parents and children in the

assertion of other noneconomic forms of “liberty.”

“Without doubt,” Justice McReynolds said in Meyer, liberty “denotes not merely freedom from bodily restraint but also the right

of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a

home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges

long recognized at common law as essential to the orderly pursuit

of happiness by free men.” 543 The right of the parents to have their

children instructed in a foreign language was “within the liberty of

the [Fourteenth] Amendment.” 544 Meyer was then relied on in Pierce

to assert that the statute there “unreasonably interferes with the

539 See Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting) (arguing against the admissibility in criminal trials of secretly taped telephone

conversations). In Olmstead, Justice Brandeis wrote: “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. . . . They

sought to protect Americans in their beliefs, their thoughts, their emotions and their

sensations. They conferred, as against the Government, the right to be let alone—

the most comprehensive of rights and the right most valued by civilized men. To

protect that right, every unjustifiable intrusion by the government upon the privacy

of the individual, whatever the means employed, must be deemed a violation of the

Fourth Amendment.” 277 U.S. at 478.

540 262 U.S. 390 (1923). Justices Holmes and Sutherland entered a dissent, applicable to Meyer, in Bartels v. Iowa, 262 U.S. 404, 412 (1923).

541 268 U.S. 510 (1925).

542 Meyer v. Nebraska, 262 U.S. 390, 400 (1923); Pierce v. Society of Sisters,

268 U.S. 510, 531, 533, 534 (1928). The Court has subsequently made clear that

these cases dealt with “a complete prohibition of the right to engage in a calling,”

holding that “a brief interruption” did not constitute a constitutional violation. Conn

v. Gabbert, 526 U.S. 286, 292 (1999) (search warrant served on attorney prevented

attorney from assisting client appearing before a grand jury).

543 262 U.S. at 399.

544 262 U.S. at 400.

AMENDMENT 14—RIGHTS GUARANTEED 1923
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.” 545

Although the Supreme Court continued to define noneconomic

liberty broadly in dicta,

546 this new concept was to have little impact for decades.547 Finally, in 1967, in Loving v. Virginia,

548 the

Court held that a statute prohibiting interracial marriage denied

substantive due process. Marriage was termed “one of the ‘basic civil

rights of man’ ” and a “fundamental freedom.” “The freedom to marry

has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” and the classification of marriage rights on a racial basis was “unsupportable.”

Further development of this line of cases was slowed by the expanded application of the Bill of Rights to the states, which afforded the Court an alternative ground to void state policies.549

Despite the Court’s increasing willingness to overturn state legislation, the basis and standard of review that the Court would use

to review infringements on “fundamental freedoms” were not always clear. In Poe v. Ullman,

550 for instance, the Court dismissed

as non-justiciable a suit challenging a Connecticut statute banning

the use of contraceptives, even by married couples. In dissent, however, Justice Harlan advocated the application of a due process standard of reasonableness—the same lenient standard he would have

545 268 U.S. at 534–35.

546 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”).

547 E.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905); Zucht v. King, 260 U.S.

174 (1922) (allowing compulsory vaccination); Buck v. Bell, 274 U.S. 200 (1927) (allowing sexual sterilization of inmates of state institutions found to be afflicted with

hereditary forms of insanity or imbecility); Minnesota v. Probate Court ex rel. Pearson,

309 U.S. 270 (1940) (allowing institutionalization of habitual sexual offenders as psychopathic personalities).

548 388 U.S. 1, 12 (1967).

549 Indeed, in Griswold v. Connecticut, 381 U.S. 479, 482 (1965), Justice Douglas reinterpreted Meyer and Pierce as having been based on the First Amendment.

Note also that in Epperson v. Arkansas, 393 U.S. 97, 105 (1968), and Tinker v. Des

Moines Indep. Community School Dist., 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.

550 367 U.S. 497, 522, 539–45 (1961). Justice Douglas, also dissenting, relied on

a due process analysis, which began with the texts of the first eight Amendments as

the basis of fundamental due process and continued into the “emanations” from this

as also protected. Id. at 509.

1924 AMENDMENT 14—RIGHTS GUARANTEED
applied to test economic legislation.551 Applying a lengthy analysis,

Justice Harlan concluded that the statute in question infringed upon

a fundamental liberty without the showing of a justification which

would support the intrusion. Yet, when the same issue returned to

the Court in Griswold v. Connecticut,

552 a majority of the Justices

rejected reliance on substantive due process 553 and instead decided

it on another basis—that the statute was an invasion of privacy,

which was a non-textual “penumbral” ri 554 ght protected by a matrix of constitutional provisions. Not only was this right to be protected again governmental intrusion, but there was apparently little

or no consideration to be given to what governmental interests might

justify such an intrusion upon the marital bedroom.

The apparent lack of deference to state interests in Griswold

was borne out in the early abortion cases, discussed in detail below, which required the showing of a “compelling state interest” to

interfere with a woman’s right to terminate a pregnancy.555 Yet, in

other contexts, the Court appears to have continued to use a “reasonableness” standard.556 More recently, the Court has complicated

the issue further (again in the abortion context) by the addition of

yet another standard, “undue burden.” 557

551 According to Justice Harlan, due process is limited neither to procedural guarantees nor to the rights enumerated in the first eight Amendments of the Bill of

Rights, but is rather “a discrete concept which subsists as an independent guaranty

of liberty and procedural fairness, more general and inclusive than the specific prohibitions.” The liberty protected by the clause “is a rational continuum which, broadly

speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state

needs asserted to justify their abridgment.” 367 U.S. at 542, 543.

552 381 U.S. 479 (1965).

553 “We do not sit as a super-legislature to determine the wisdom, need, and

propriety of laws that touch economic problems, business affairs, or social conditions.” Griswold v. Connecticut, 381 U.S. at 482 (opinion of Court by Justice Douglas).

554 The analysis, while reminiscent of the “right to privacy” first suggested by

Warren and Brandeis, still approached the matter in reliance on substantive due

process cases. It should be noted that the separate concurrences of Justices Harlan

and White were specifically based on substantive due process, 381 U.S. at 499, 502,

which indicates that the majority’s position was intended to be something different.

Justice Goldberg, on the other hand, in concurrence, would have based the decision

on the Ninth Amendment. 381 U.S. at 486–97. See analysis under the Ninth Amendment, “Rights Retained By the People,” supra.

555 See Roe v. Wade, 410 U.S. 113 (1973).

556 When the Court began to extend “privacy” rights to unmarried person through

the equal protection clause, it seemed to rely upon a view of rationality and reasonableness not too different from Justice Harlan’s dissent in Poe v. Ullman. Eisenstadt

v. Baird, 405 U.S. 438 (1972), is the principal case. See also Stanley v. Illinois, 405

U.S. 645 (1972).

557 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833

(1992).

AMENDMENT 14—RIGHTS GUARANTEED 1925
A further problem confronting the Court is how such abstract

rights, once established, are to be delineated. For instance, the constitutional protections afforded to marriage, family, and procreation in Griswold have been extended by the Court to apply to married and unmarried couples alike.558 However, in Bowers v.

Hardwick,

559 the Court majority rejected a challenge to a Georgia

sodomy law despite the fact that it prohibited types of intimate activities engaged in by married as well as unmarried couples.560 Then,

in Lawrence v. Texas,

561 the Supreme Court reversed itself, holding

that a Texas statute making it a crime for two persons of the same

sex to engage in intimate sexual conduct violates the Due Process

Clause.

More broadly, in Washington v. Glucksberg, the Court, in an effort to guide and “restrain” a court’s determination of the scope of

substantive due process rights, held that the concept of “liberty” protected under the Due Process Clause should first be understood to

protect only those rights that are “deeply rooted in this Nation’s

history and tradition.” 562 Moreover, the Court in Glucksberg required a “careful description” of fundamental rights that would be

grounded in specific historical practices and traditions that serve

as “crucial guideposts for responsible decisionmaking.” 563 However,

the Court, in Obergefell v. Hodges largely departed from Glucksberg’s

formulation for assessing fundamental rights in holding that the

Due Process Clause required states to license and recognize marriages between two people of the same sex.564 Instead, the Obergefell

Court recognized that fundamental rights do not “come from an558 See, e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972). “If under Griswold the

distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in

Griswold the right of privacy in question inhered in the marital relationship. Yet

the marital couple is not an independent entity with a mind and heart of its own,

but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into

matters so fundamentally affecting a person as the decision whether to bear or beget a child.” 405 U.S. at 453.

559 478 U.S. 186 (1986).

560 The Court upheld the statute only as applied to the plaintiffs, who were homosexuals, 478 U.S. at 188 (1986), and thus rejected an argument that there is a

“fundamental right of homosexuals to engage in acts of consensual sodomy.” Id. at

192–93. In a dissent, Justice Blackmun indicated that he would have evaluated the

statute as applied to both homosexual and heterosexual conduct, and thus would

have resolved the broader issue not addressed by the Court—whether there is a general right to privacy and autonomy in matters of sexual intimacy. Id. at 199–203

(Justice Blackmun dissenting, joined by Justices Brennan, Marshall and Stevens).

561 539 U.S. 558 (2003) (overruling Bowers).

562 See 521 U.S. 702, 720–21 (1997).

563 See id. at 721 (internal citations and quotations omitted).

564 See 576 U.S. ___, No. 14–556, slip op. at 18 (2015).

1926 AMENDMENT 14—RIGHTS GUARANTEED
cient sources alone” and instead must be viewed in light of evolving social norms and in a “comprehensive” manner.565 For the

Obergefell Court, the two-part test relied on in Glucksberg—relying

on history as a central guide for constitutional liberty protections

and requiring a “careful description” of the right in question—was

“inconsistent” with the approach taken in cases discussing certain

fundamental rights, including the rights to marriage and intimacy,

and would result in rights becoming stale, as “received practices

could serve as their own continued justification and new groups could

not invoke rights once denied.” 566

Similar disagreement over the appropriate level of generality

for definition of a liberty interest was evident in Michael H. v. Gerald D., involving the rights of a biological father to establish paternity and associate with a child born to the wife of another man.567

While recognizing the protection traditionally afforded a father, Justice Scalia, joined only by Chief Justice Rehnquist in this part of

the plurality decision, rejected the argument that a non-traditional

familial connection (i.e. the relationship between a father and the

offspring of an adulterous relationship) qualified for constitutional

protection, arguing that courts should limit consideration to “the

most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.” 568 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.’ ” 569

Abortion.—In Roe v. Wade,

570 the Court established a right of

personal privacy protected by the Due Process Clause that includes

the right of a woman to determine whether or not to bear a child.

In doing so, the Court dramatically increased judicial oversight of

565 See id. at 18–19.

566 See id. at 18.

567 491 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.

568 491 U.S. at 128 n.6.

569 491 U.S. at 142.

570 410 U.S. 113, 164 (1973). A companion case was Doe v. Bolton, 410 U.S. 179

(1973). The opinion by Justice Blackman was concurred in by Justices Douglas, Brennan, Stewart, Marshall, and Powell, and Chief Justice Burger. Justices White and

Rehnquist dissented, id. at 171, 221, arguing that the Court should follow the traditional due process test of determining whether a law has a rational relation to a

valid state objective and that so judged the statute was valid. Justice Rehnquist

was willing to consider an absolute ban on abortions even when the mother’s life is

in jeopardy to be a denial of due process, 410 U.S. at 173, while Justice White left

the issue open. 410 U.S. at 223.

AMENDMENT 14—RIGHTS GUARANTEED 1927
legislation under the privacy line of cases, striking down aspects of

abortion-related laws in practically all the states, the District of Columbia, and the territories. To reach this result, the Court first undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion were

of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review.571 Then, the Court established that the word “person” as used

in the Due Process Clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked

federal constitutional protection.572 Finally, the Court summarily announced that the “Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” includes “a right of personal privacy, or a guarantee of certain areas or zones of privacy” 573

and that “[t]his right of privacy . . . is broad enough to encompass

a woman’s decision whether or not to terminate her pregnancy.” 574

It was also significant that the Court held this right of privacy

to be “fundamental” and, drawing upon the strict standard of review found in equal protection litigation, held that the Due Process

Clause required that any limits on this right be justified only by a

“compelling state interest” and be narrowly drawn to express only

the legitimate state interests at stake.575 Assessing the possible interests of the states, the Court rejected justifications relating to the

promotion of morality and the protection of women from the medical hazards of abortions as unsupported in the record and illserved by the laws in question. Further, the state interest in protecting the life of the fetus was held to be limited by the lack of a

social consensus with regard to the issue of when life begins. Two

valid state interests were, however, recognized. “[T]he State does

have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . [and] it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each

grows in substantiality as the woman approaches term and, at a

point during pregnancy, each becomes ‘compelling.’ ” 576

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

571 410 U.S. at 129–47.

572 410 U.S. at 156–59.

573 410 U.S. at 152–53.

574 410 U.S. at 152–53.

575 410 U.S. at 152, 155–56. The “compelling state interest” test in equal protection cases is reviewed under “The New Standards: Active Review,” infra.

576 410 U.S. at 147–52, 159–63.

1928 AMENDMENT 14—RIGHTS GUARANTEED
capability of meaningful life outside the mother’s womb, the Court

found that the state has no “compelling interest” in the first trimester and “the attending physician, in consultation with his patient,

is free to determine, without regulation by the State, that, in his

medical judgment, the patient’s pregnancy should be terminated.” 577 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.578 “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.” 579

Thus, the Court concluded that “(a) for the stage prior to approximately the end of the first trimester, the abortion decision and

its effectuation must be left to the medical judgment of the pregnant woman’s attending physician; (b) for the stage subsequent to

approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to

maternal health; (c) for the stage subsequent to viability, the State

in promoting its interest in the potentiality of human life may, if it

chooses, regulate, and even proscribe, abortion except where it is

necessary, in appropriate medical judgment, for the preservation of

the life or health of the mother.”

Further, in a companion case, the Court struck down three procedural provisions relating to a law that did allow some abortions.580 These regulations required that an abortion be performed

in a hospital accredited by a private accrediting organization, that

the operation be approved by the hospital staff abortion committee,

and that the performing physician’s judgment be confirmed by the

independent examination of the patient by two other licensed phy577 410 U.S. at 163.

578 410 U.S. at 163.

579 410 U.S. at 163–64. A fetus becomes “viable” when it is “potentially able to

live outside the mother’s womb, albeit with artificial aid. Viability is usually placed

at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Id. at

160 (footnotes omitted).

580 Doe v. Bolton, 410 U.S. 179 (1973).

AMENDMENT 14—RIGHTS GUARANTEED 1929
sicians. 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.581 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

abortions on the grounds that the doctor could use his best clinical

judgment in light of all the attendant circumstances.582

After Roe, various states attempted to limit access to this newly

found right, such as by requiring spousal or parental consent to obtain an abortion.583 The Court, however, held that (1) requiring spousal consent was an attempt by the state to delegate a veto power

over the decision of the woman and her doctor that the state itself

could not exercise,584 (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,585 and (3) that a criminal provision requiring the attending physician to exercise all care and

581 410 U.S. at 192–200. In addition, a residency provision was struck down as

violating the privileges and immunities clause of Article IV, § 2. Id. at 200. See analysis under “State Citizenship: Privileges and Immunities,” supra.

582 410 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 holding in Roe 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

that is unelaborated in the opinion. See also United States v. Vuitch, 402 U.S. 62

(1971).

583 Planned Parenthood v. Danforth, 428 U.S. 52 (1976). See also Bellotti v. Baird,

443 U.S. 622 (1979) (parental consent to minor’s abortion); Colautti v. Franklin, 439

U.S. 379 (1979) (imposition on doctor’s determination of viability of fetus and obligation to take life-saving steps); Singleton v. Wulff, 428 U.S. 106 (1976) (standing of

doctors to litigate right of patients to Medicaid-financed abortions); Bigelow v. Virginia, 421 U.S. 809 (1975) (ban on newspaper ads for abortions); Connecticut v. Menillo,

423 U.S. 9 (1975) (state ban on performance of abortion by “any person” may constitutionally be applied to prosecute nonphysicians performing abortions).

584 Planned Parenthood v. Danforth, 428 U.S. 52, 67–72 (1976). The Court recognized the husband’s interests and the state interest in promoting marital harmony. But the latter was deemed not served by the requirement, and, since when

the spouses disagree on the abortion decision one has to prevail, the Court thought

the person who bears the child and who is the more directly affected should be the

one to prevail. Justices White and Rehnquist and Chief Justice Burger dissented.

Id. at 92.

585 428 U.S. at 72–75. Minors have rights protected by the Constitution, but the

states have broader authority to regulate their activities than those of adults. Here,

the Court perceived no state interest served by the requirement that overcomes the

woman’s right to make her own decision; it emphasized that it was not holding that

every minor, regardless of age or maturity, could give effective consent for an abortion. Justice Stevens joined the other dissenters on this part of the holding. Id. at

101. In Bellotti v. Baird, 443 U.S. 622 (1979), eight Justices agreed that a parental

consent law, applied to a mature minor found to be capable of making, and having

1930 AMENDMENT 14—RIGHTS GUARANTEED
diligence to preserve the life and health of the fetus without regard

to the stage of viability was inconsistent with Roe.

586 The Court sustained provisions that required the woman’s written consent to an

abortion with assurances that it is informed and freely given, and

the Court also upheld mandatory reporting and recordkeeping for

public health purposes with adequate assurances of confidentiality.

Another provision that barred the use of the most commonly used

method of abortion after the first 12 weeks of pregnancy was declared unconstitutional because, in the absence of another comparably safe technique, it did not qualify as a reasonable protection of

maternal health and it instead operated to deny the vast majority

of abortions after the first 12 weeks.587

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.” 588 The Court held, however, that a state may require

that abortions be performed in hospitals or licensed outpatient clinics, as long as licensing standards do not “depart from accepted medimade, an informed and reasonable decision to have an abortion, was void but split

on the reasoning. Four Justices would hold that neither parents nor a court could

be given an absolute veto over a mature minor’s decision, while four others would

hold that if parental consent is required the state must afford an expeditious access

to court to review the parental determination and set it aside in appropriate cases.

In H. L. v. Matheson, 450 U.S. 398 (1981), the Court upheld, as applied to an

unemancipated minor living at home and dependent on her parents, a statute requiring a physician, “if possible,” to notify the parents or guardians of a minor seeking

an abortion. The decisions leave open a variety of questions, addressed by some concurring and dissenting Justices, dealing with when it would not be in the minor’s

best interest to avoid notifying her parents and with the alternatives to parental

notification and consent. In two 1983 cases the Court applied the Bellotti v. Baird

standard for determining whether judicial substitutes for parental consent requirements permit a pregnant minor to demonstrate that she is sufficiently mature to

make her own decision on abortion. Compare City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (no opportunity for case-by-case determinations); with Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476 (1983) (adequate

individualized consideration).

586 Planned Parenthood v. Danforth, 428 U.S. 52, 81–84 (1976). A law requiring

a doctor, subject to penal sanction, to determine if a fetus is viable or may be viable

and to take steps to preserve the life and health of viable fetuses was held to be

unconstitutionally vague. Colautti v. Franklin, 439 U.S. 379 (1979).

587 Planned Parenthood v. Danforth, 428 U.S. 52, 75–79 (1976).

588 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.

AMENDMENT 14—RIGHTS GUARANTEED 1931
cal practice.” 589 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.590 The Court also invalidated a 24-

hour waiting period following a woman’s written, informed consent.591

On the other hand, the Court upheld a requirement that tissue

removed in clinic abortions be submitted to a pathologist for examination, because the same requirements were imposed for inhospital abortions and for almost all other in-hospital surgery.592

The Court also 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.593 Further, the Court refused to extend

Roe to require states to pay for abortions for the indigent, holding

that neither due process nor equal protection requires government

to use public funds for this purpose.594

The equal protection discussion in the public funding case bears

closer examination because of its significance for later cases. The

equal protection question arose because public funds were being made

available for medical care to indigents, including costs attendant to

childbirth, but not for expenses associated with abortions. Admittedly, discrimination based on a non-suspect class such as indigents

does not generally compel strict scrutiny. However, the question arose

as to whether such a distinction impinged upon the right to abortion, and thus should be subjected to heightened scrutiny. The Court

rejected this argument and used a rational basis test, noting that

589 Simopoulos v. Virginia, 462 U.S. 506, 516 (1983).

590 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 444–45

(1983); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S.

747 (1986). In City of Akron, the Court explained that while the state has a legitimate interest in ensuring that the woman’s consent is informed, it may not 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. City of Akron,

462 U.S. 416, 448–49 (1983).

591 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).

592 Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476, 486–90 (1983).

593 462 U.S. at 482–86, 505.

594 Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980).

See also Beal v. Doe, 432 U.S. 438 (1977) (states are not required by federal law to

fund abortions); Harris v. McRae, 448 U.S. at 306–11 (same). The state restriction

in Maher, 432 U.S. at 466, applied to nontherapeutic abortions, whereas the federal

law barred funding for most medically necessary abortions as well, a distinction the

Court deemed irrelevant, Harris, 448 U.S. at 323, although it provided Justice Stevens with the basis for reaching different results. Id. at 349 (dissenting).

1932 AMENDMENT 14—RIGHTS GUARANTEED
the condition that was a barrier to getting an abortion—indigency—

was not created or exacerbated by the government.

In reaching this finding the Court held that, while a statecreated obstacle need not be absolute to be impermissible, it must

at a minimum “unduly burden” the right to terminate a pregnancy.

And, the Court held, to allocate public funds so as to further a state

interest in normal childbirth does not create an absolute obstacle

to obtaining and does not unduly burden the right.595 What is interesting about this holding is that the “undue burden” standard was

to take on new significance when the Court began raising questions about the scope and even the legitimacy of Roe.

Although the Court expressly reaffirmed Roe v. Wade in 1983,596

its 1989 decision in Webster v. Reproductive Health Services 597 signaled the beginning of a retrenchment. Webster upheld two aspects

of a Missouri statute regulating abortions: a prohibition on the use

of public facilities and employees to perform abortions not necessary to save the life of the mother; and a requirement that a physician, before performing an abortion on a fetus she has reason to

believe has reached a gestational age of 20 weeks, make an actual

viability determination.598 This retrenchment was also apparent in

595 “An indigent woman who desires an abortion suffers no disadvantage as a

consequence of Connecticut’s decision to fund childbirth; she continues as before to

be dependent on private sources for the services she desires. The State may have

made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already

there.” Maher, 432 U.S. at 469–74 (the quoted sentence is at 474); Harris, 448 U.S.

at 321–26. Justices Brennan, Marshall, and Blackmun dissented in both cases and

Justice Stevens joined them in Harris. Applying the same principles, the Court held

that a municipal hospital could constitutionally provide hospital services for indigent women for childbirth but deny services for abortion. Poelker v. Doe, 432 U.S.

519 (1977).

596 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.

597 492 U.S. 490 (1989).

598 The Court declined to rule on several other aspects of Missouri’s law, including a preamble stating that life begins at conception, and a prohibition on the use

of public funds to encourage or counsel a woman to have a nontherapeutic abortion.

AMENDMENT 14—RIGHTS GUARANTEED 1933
two 1990 cases in which the Court upheld both one-parent and twoparent notification requirements.599

Webster, however, exposed a split in the Court’s approach to Roe

v. Wade. The plurality opinion by Chief Justice Rehnquist, joined

in that part by Justices White and Kennedy, was highly critical of

Roe, but found no occasion to overrule it. Instead, the plurality’s

approach sought to water down Roe by applying a less stringent

standard of review. For instance, the plurality found the viability

testing requirement valid because it “permissibly furthers the State’s

interest in protecting potential human life.” 600 Justice O’Connor, however, concurred in the result based on her view that the requirement did not impose “an undue burden” on a woman’s right to an

abortion, while Justice Scalia’s concurrence urged that Roe be overruled outright. Thus, when a Court majority later invalidated a Minnesota procedure requiring notification of both parents without judicial bypass, it did so because it did “not reasonably further any

legitimate state interest.” 601

Roe was not confronted more directly in Webster because the

viability testing requirement, as characterized by the plurality, merely

asserted a state interest in protecting potential human life after viability, and hence did not challenge Roe’s ‘trimester framework.602

Nonetheless, a majority of Justices appeared ready to reject a strict

trimester approach. The plurality asserted a compelling state interest in protecting human life throughout pregnancy, rejecting the notion that the state interest “should come into existence only at the

point of viability;” 603 Justice O’Connor repeated her view that the

trimester approach is “problematic;” 604 and, as mentioned, Justice

Scalia would have done away with Roe altogether.

599 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. Ohio v. Akron Center for Reproductive Health,

497 U.S. 502 (1990). And, while the Court ruled that Minnesota’s requirement that

both parents be notified was invalid standing alone, the statute was saved by a judicial bypass alternative. Hodgson v. Minnesota, 497 U.S. 417 (1990).

600 492 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.

601 Hodgson v. Minnesota, 497 U.S. 417, 450 (1990).

602 492 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.

603 492 U.S. at 519.

604 492 U.S. at 529. Previously, dissenting in City of Akron v. Akron Center for

Reproductive Health, 462 U.S. 416, 458 (1983), Justice O’Connor had suggested that

1934 AMENDMENT 14—RIGHTS GUARANTEED
Three years later, however, the Court invoked principles of stare

decisis to reaffirm Roe’s “essential holding,” although it had by now

abandoned the trimester approach and adopted Justice O’Connor’s

“undue burden” test and Roe’s “essential holding.” 605 According to

the Court in Planned Parenthood of Southeastern Pennsylvania v.

Casey,

606 the right to abortion has three parts. “First is a recognition of the right of a woman to choose to have an abortion before

viability and to obtain it without undue interference from the State.

Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second

is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which

endanger a woman’s life or health. And third is the principle that

the State has legitimate interests from the outset of the pregnancy

in protecting the health of the woman and the life of the fetus that

may become a child.”

This restatement of Roe’s essentials, recognizing a legitimate state

interest in protecting fetal life throughout pregnancy, necessarily

eliminated the rigid trimester analysis permitting almost no regulation in the first trimester. Viability, however, still marked “the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic

abortions,” 607 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 exerthe 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.”

605 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,”

id. at 923, and would have invalidated all of the challenged provisions. Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas, would have overruled

Roe and upheld all challenged aspects of the Pennsylvania law.

606 505 U.S. 833, 846 (1992).

607 505 U.S. 833, 860 (1992).

AMENDMENT 14—RIGHTS GUARANTEED 1935
cise 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.” 608

Casey did, however, overturn earlier decisions striking down informed consent and 24-hour waiting periods.609 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.610After

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 611 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).612 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 to decide whether to bear a child.

608 505 U.S. at 877–78. Application of these principles in Casey led the Court to

uphold overrule some precedent, but to invalidate arguably the most restrictive provision. The four provisions challenged which were upheld included a narrowed definition of “medical emergency” (which controlled exemptions from the Act’s limitations), record keeping and reporting requirements, an informed consent and 24-hour

waiting period requirement; and a parental consent requirement, with possibility

for judicial bypass, applicable to minors. The provisions which was invalidated as

an undue burden on a woman’s right to an abortion was a spousal notification requirement.

609 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).

610 Requiring informed consent for medical procedures was found to be both commonplace and reasonable, and, in the absence of any evidence of burden, the state

could require that information relevant to informed consent be provided by a physician rather than an assistant. The 24-hour waiting period was approved both in theory

(it being reasonable to assume “that important decisions will be more informed and

deliberate if they follow some period of reflection”) and in practice (in spite of “troubling” findings of increased burdens on poorer women who must travel significant

distances to obtain abortions, and on all women who must twice rather than once

brave harassment by anti-abortion protesters). 505 U.S. at 885–87.

611 The plurality Justices were joined in this part of their opinion by Justices

Blackmun and Stevens.

612 505 U.S. at 898.

1936 AMENDMENT 14—RIGHTS GUARANTEED
The passage of various state laws restricting so-called “partial

birth abortions” gave observers an opportunity to see if the “undue

burden” standard was in fact likely to lead to a major curtailment

of the right to obtain an abortion. In Stenberg v. Carhart,

613 the

Court reviewed a Nebraska statute that forbade “partially delivering vaginally a living unborn child before killing the unborn child

and completing the delivery.” Although the state argued that the

statute was directed only at an infrequently used procedure referred to as an “intact dilation and excavation,” the Court found

that the statute could be interpreted to include the far more common procedure of “dilation and excavation.” 614 The Court also noted

that the prohibition appeared to apply to abortions performed by

these procedures throughout a pregnancy, including before viability

of the fetus, and that the sole exception in the statute was to allow

an abortion that was necessary to preserve the life of the mother.615

Thus, the statute brought into question both the distinction maintained in Casey between pre-viability and post-viability abortions,

and the oft-repeated language from Roe that provides that abortion

restrictions must contain exceptions for situations where there is a

threat to either the life or the health of a pregnant woman.616 The

Court, however, reaffirmed the central tenets of its previous abortion decisions, striking down the Nebraska law because its possible

application to pre-viability abortions was too broad, and the exception for threats to the life of the mother was too narrow.617

Only seven years later, however, the Supreme Court decided Gonzales v. Carhart,

618 which, although not formally overruling Stenberg,

appeared to signal a change in how the Court would analyze limitations on abortion procedures. Of perhaps greatest significance is

that Gonzales was the first case in which the Court upheld a statutory prohibition on a particular method of abortion. In Gonzales,

the Court, by a 5–4 vote,619 upheld a federal criminal statute that

613 530 U.S. 914 (2000).

614 530 U.S. at 938–39.

615 The Nebraska law provided that such procedures could be performed where

“necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.” Neb. Rev. Stat. Ann. § 28–

328(1).

616 Roe v. Wade, 410 U.S. 113, 164 (1973).

617 As to the question of whether an abortion statute that is unconstitutional in

some instances should be struck down in application only or in its entirety, see Ayotte

v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006) (challenge to

parental notification restrictions based on lack of emergency health exception remanded to determine legislative intent regarding severability of those applications).

618 550 U.S. 124 (2007).

619 Justice Kennedy wrote the majority opinion, joined by Justices Roberts, Scalia,

Thomas, and Alito, while Justice Ginsberg authored a dissenting opinion, which was

AMENDMENT 14—RIGHTS GUARANTEED 1937
prohibited an overt act to “kill” a fetus where it had been intentionally “deliver[ed] . . . [so that] in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in

the case of breech presentation, any part of the fetal trunk past

the navel is outside the body of the mother.” 620 The Court distinguished this federal statute from the Nebraska statute that it had

struck down in Stenberg, holding that the federal statute applied

only to the intentional performance of the less-common “intact dilation and excavation.” The Court found that the federal statute was

not unconstitutionally vague because it provided “anatomical landmarks” that provided doctors with a reasonable opportunity to know

what conduct it prohibited.621 Further, the scienter requirement (that

delivery of the fetus to these landmarks before fetal demise be intentional) was found to alleviate vagueness concerns.622

In a departure from the reasoning of Stenberg, the Court held

that the failure of the federal statute to provide a health exception 623 was justified by congressional findings that such a procedure was not necessary to protect the health of a mother. Noting

that the Court has given “state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty,” the Court held that, at least in the context of a

facial challenge, such an exception was not needed where “[t]here

is documented medical disagreement whether the Act’s prohibition

would ever impose significant health risks on women.” 624 The Court

did, however, leave open the possibility that as-applied challenges

could still be made in individual cases.625

As in Stenberg, the prohibition considered in Gonzales extended to the performance of an abortion before the fetus was viable, thus directly raising the question of whether the statute imposed an “undue burden” on the right to obtain an abortion. Unlike

joined by Justices Steven, Souter and Breyer. Justice Thomas also filed a concurring opinion, joined by Justice Scalia, calling for overruling Casey and Roe.

620 18 U.S.C. § 1531(b)(1)(A). The penalty imposed on a physician for a violation

of the statute was fines and/or imprisonment for not more than 2 years. In addition,

the physician could be subject to a civil suit by the father (or maternal grandparents, where the mother is a minor) for money damages for all injuries, psychological

and physical, occasioned by the violation of this section, and statutory damages equal

to three times the cost of the partial-birth abortion.

621 550 U.S. at 150.

622 550 U.S. at 148–150.

623 As in Stenberg, the statute provided an exception for threats to the life of a

woman.

624 550 U.S. at 162. Arguably, this holding overruled Stenberg insofar as Stenberg

had allowed a facial challenge to the failure of Nebraska to provide a health exception to its prohibition on intact dilation and excavation abortions. 530 U.S. at 929–

38.

625 550 U.S. at 168.

1938 AMENDMENT 14—RIGHTS GUARANTEED
the statute in Stenberg, however, the ban in Gonzales was limited

to the far less common “intact dilation and excavation” procedure,

and consequently did not impose the same burden as the Nebraska

statute. The Court also found that there was a “rational basis” for

the limitation, including governmental interests in the expression

of “respect for the dignity of human life,” “protecting the integrity

and ethics of the medical profession,” and the creation of a “dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion.” 626

The Court revisited the question of whether particular restrictions place a “substantial obstacle” in the path of women seeking a

pre-viability abortion and constitute an “undue burden” on abortion access in its 2016 decision in Whole Woman’s Health v. Hellerstedt.

627 At issue in Whole Woman’s Health was a Texas law that

required (1) physicians performing or inducing abortions to have active admitting privileges at a hospital located not more than thirty

miles from the facility; and (2) the facility itself to meet the minimum standards for ambulatory surgical centers under Texas law.628

Texas asserted that these requirements served various purposes related to women’s health and the safety of abortion procedures, including ensuring that women have easy access to a hospital should

complications arise during an abortion procedure and that abortion

facilities meet heightened health and safety standards.629

In reviewing Texas’s law, the Whole Woman’s Health Court began by clarifying the underlying “undue burden” standard established in Casey. First, the Court noted that the relevant standard

from Casey requires that courts engage in a balancing test to determine whether a law amounts to an unconstitutional restriction on

abortion access by considering the “burdens a law imposes on abortion access together with the benefits those laws confer.” 630 As a

consequence, the Whole Woman’s Health articulation of the undue

burden standard necessarily requires that courts “consider the existence or nonexistence of medical benefits” when considering whether

a regulation constitutes an undue burden.631 In such a consideration, a reviewing court, when evaluating an abortion regulation

purporting to protect woman’s health, may need to closely scrutinize (1) the relative value of the protections afforded under the new

626 550 U.S. at 160.

627 579 U.S. ___, No. 15–274, slip op. (2016).

628 Id. at 1–2.

629 Id. at 22.

630 Id. at 19.

631 Id.

AMENDMENT 14—RIGHTS GUARANTEED 1939
law when compared to those prior to enactment 632 and (2) health

regulations with respect to comparable medical procedures.633 Second, the Whole Woman’s Health decision rejected the argument that

judicial scrutiny of abortion regulations was akin to rational basis

review, concluding that courts should not defer to legislatures when

resolving questions of medical uncertainty that arise with respect

to abortion regulations.634 Instead, the Court found that reviewing

courts are permitted to place “considerable weight upon evidence

and argument presented in judicial proceedings” when evaluating

legislation under the undue burden standard, notwithstanding contrary conclusions by the legislature.635

Applying these standards, the Whole Woman’s Health Court viewed

the alleged benefits of the Texas requirements as inadequate to justify the challenged provisions under the precedent of Casey, given

both the burdens they imposed upon women’s access to abortion and

the benefits provided.636 Specifically as to the admitting privileges

requirement, the Court determined that nothing in the underlying

record showed that this requirement “advanced Texas’s legitimate

interest in protecting women’s health” in any significant way as compared to Texas’s previous requirement that abortion clinics have a

“working arrangement” with a doctor with admitting privileges.637

In particular, the Court rejected the argument that the admitting

privileges requirements were justified to provide an “extra layer” of

protection against abusive and unsafe abortion facilities, as the Court

concluded that “[d]etermined wrongdoers, already ignoring existing

statutes and safety measures, are unlikely to be convinced to adopt

safe practices by a new overlay of regulations.” 638 On the contrary,

in the Court’s view, the evidentiary record suggested that the

admitting-privileges requirement placed a substantial obstacle in the

path of women’s access to abortion because (1) of the temporal proximity between the imposition of the requirement and the closing of

632 Id. at 22, 28–30 (reviewing the state of the law prior to the enactment of the

abortion regulation to determine whether there was a “significant health-related problem that the new law helped to cure.”).

633 Id. at 30 (comparing the health risks associated with abortion relative to other

medical procedures).

634 Id. at 20.

635 See id. (noting that in Gonzales v. Carhart, 550 U.S. 124, 165 (2007), the

Court maintained that courts have an “independent constitutional duty” to review

factual findings when reviewing legislation as inconsistent with abortion rights).

636 Id. at 19 (quoting and citing Planned Parenthood v. Casey, 505 U.S. 833,

877–78 (1992) (plurality opinion)).

637 Id. at 23.The Court further noted that Texas had admitted it did not know

of a “single instance” where the requirement would have helped “even one woman”

obtain “better treatment.” Id.

638 Id. at 27.

1940 AMENDMENT 14—RIGHTS GUARANTEED
a number of clinics once the requirement was enforced; 639 and (2)

the necessary consequence of the requirement of foreclosing abortion providers from obtaining such privileges for reasons having “nothing to do with ability to perform medical procedures.” 640 In the view

of the Court, the resulting facility closures that the Court attributed to the first challenged requirement meant fewer doctors, longer wait times, and increased crowding for women at the remaining facilities, and the closures also increased driving distances to

an abortion clinic for some women, amounting to an undue burden.641

Similarly as to the surgical-center requirement, the Whole Woman’s Health Court viewed the record as evidencing that the requirement “provides no benefits” in the context of abortions produced

through medication and was “inappropriate” as to surgical abortions.642 In so doing, the Court also noted disparities between the

treatment of abortion facilities and facilities providing other medical procedures, such as colonoscopies, which the evidence suggested had greater risks than abortions.643 The Court viewed the

underlying record as demonstrating that the surgical-center requirement would also have further reduced the number of abortion facilities in Texas to seven or eight and, in so doing, would have burdened women’s access to abortion in the same way as the admittingprivileges requirement (e.g., creating crowding, increasing driving

distances).644 Ultimately, the Court struck down the two provisions

in the Texas law, concluding that the regulations in question imposed an undue burden on a “large fraction” of women for whom

the provisions are an “actual” restriction.645

639 Id. at 24.

640 Specifically, the Court noted that hospitals typically condition admitting privileges based on the number admissions a doctor has to a hospital—policies that, because of the safety of abortion procedures, meant that providers likely would be unable to obtain and maintain such privileges. Id. at 25.

641 Id. at 26. The Court noted that increased driving distances are not necessarily an undue burden, but in this case viewed them as “one additional burden” which,

when taken together with the other burdens—and the “virtual absence of any health

benefit”—lead to the conclusion that the admitting-privileges requirement constitutes an undue burden. Id.

642 Id. at 30.

643 Id. at 30–31.

644 Id. at 32, 35–36.

645 Id. at 39. In so concluding, the Whole Woman’s Health Court appears to have

clarified that the burden for a plaintiff to establish that an abortion restriction is

unconstitutional on its face (as opposed to unconstitutional as applied in a particular circumstance) is to show that the law would be unconstitutional with respect to

a “large fraction” of women for whom the provisions are relevant. Id. (rejecting Texas’s argument that the regulations in question would not affect most women of reproductive age in Texas); cf. United States v. Salerno, 481 U.S. 739, 745 (1987) (“A

facial challenge to a legislative Act is, of course, the most difficult challenge to mount

AMENDMENT 14—RIGHTS GUARANTEED 1941
Privacy after Roe: Informational Privacy, Privacy of the

Home or Personal Autonomy?.—The use of strict scrutiny to review intrusions on personal liberties in Roe v. Wade seemed to portend the Court’s striking down many other governmental restraints upon personal activities. These developments have not

occurred, however, as the Court has been relatively cautious in extending the right to privacy. Part of the reason that the Court may

have been slow to extend the rationale of Roe to other contexts was

that “privacy” or the right “to be let alone” appears to encompass a

number of different concepts arising from different parts of the Constitution, and the same combination of privacy rights and competing governmental interests are not necessarily implicated in other

types of “private” conduct.

For instance, the term “privacy” itself seems to encompass at

least two different but related issues. First, it relates to protecting

against disclosure of personal information to the outside world, i.e.,

the right of individuals to determine how much and what information about themselves is to be revealed to others.646 Second, it relates inward toward notions of personal autonomy, i.e., the freedom

of individuals to perform or not perform certain acts or subject themselves to certain experiences.647 These dual concepts, here referred

to as “informational privacy” and “personal autonomy,” can easily

arise in the same case, as government regulation of personal behavior can limit personal autonomy, while investigating and prosecuting such behavior can expose it to public scrutiny. Unfortunately,

some of the Court’s cases identified violations of a right of privacy

without necessarily making this distinction clear. While the main

thrust of the Court’s fundamental-rights analysis appears to emphasize the personal autonomy aspect of privacy, now often phrased as

“liberty” interests, a clear analytical framework for parsing of these

two concepts in different contexts has not yet been established.

Another reason that “privacy” is difficult to define is that the

right appears to arise from multiple sources. For instance, the Court

first identified issues regarding informational privacy as specifically tied to various provisions of Bill of Rights, including the First

and Fourth Amendments. In Griswold v. Connecticut,

648 however,

Justice Douglas found an independent right of privacy in the “pensuccessfully, since the challenger must establish that no set of circumstances exists

under which the Act would be valid.”).

646 For instance, Justice Douglas’s asked rhetorically in Griswold: “[w]ould we

allow the police to search the sacred precincts of marital bedrooms for telltale signs

of the use of contraceptives? The very idea is repulsive to the notions of privacy

surrounding the marriage relationship.” 381 U.S. at 486.

647 Whalen v. Roe, 429 U.S. 589, 598–600 (1977).

648 381 U.S. 479 (1965).

1942 AMENDMENT 14—RIGHTS GUARANTEED
umbras” of these and other constitutional provisions. Although the

parameters and limits of the right to privacy were not well delineated by that decision, which struck down a statute banning married couples from using contraceptives, the right appeared to be based

on the notion that the government should not be allowed to gather

information about private, personal activities.649 However, years later,

when the closely related abortion cases were decided, the right to

privacy being discussed was now characterized as a “liberty interest” protected under the Due Process Clause of the Fourteenth Amendment,650 and the basis for the right identified was more consistent

with a concern for personal autonomy.

After Griswold, the Court had several opportunities to address

and expand on the concept of Fourteenth Amendment informational privacy, but instead it returned to Fourth and Fifth Amendment principles to address official regulation of personal information.651 For example, in United States v. Miller,

652 the Court, in

evaluating the right of privacy of depositors to restrict government

access to cancelled checks maintained by the bank, relied on whether

there was an expectation of privacy under the Fourth Amendment.653 Also, the Court has held that First Amendment itself affords some limitation upon governmental acquisition of information, although only where the exposure of such information would

violate freedom of association or the like.654

649 The predominant concern flowing through the several opinions in Griswold

v. Connecticut is the threat of forced disclosure about the private and intimate lives

of persons through the pervasive surveillance and investigative efforts that would

be needed to enforce such a law; moreover, the concern was not limited to the pressures such investigative techniques would impose on the confines of the Fourth Amendment’s search and seizure clause, but also included techniques that would have been

within the range of permissible investigation.

650 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).

651 E.g., California Bankers Ass’n v. Shultz, 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).

652 425 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).

653 The Bank Secrecy Act required the banks to retain cancelled checks. The

Court held that the checks were business records of the bank in which the depositors had no expectation of privacy and therefore there was no Fourth Amendment

standing to challenge government legal process directed to the bank, and this status was unchanged by the fact that the banks kept the records under government

mandate in the first place.

654 See Buckley v. Valeo, 424 U.S. 1, 60–82 (1976); Whalen v. Roe, 429 U.S. 589,

601 n.27, 604 n.32 (1977); United States v. Miller, 425 U.S. 435, 444 n.6 (1976). The

Court continues to reserve the question of the “[s]pecial problems of privacy which

AMENDMENT 14—RIGHTS GUARANTEED 1943
Similarly, in Fisher v. United States,

655 the Court held that the

Fifth Amendment’s Self-incrimination Clause did not prevent the

IRS from obtaining income tax records prepared by accountants and

in the hands of either the taxpayer or his attorney, no matter how

incriminating, because the Amendment only protects against compelled testimonial self-incrimination. The Court noted that it “has

never suggested that every invasion of privacy violates the privilege. Within the limits imposed by the language of the Fifth Amendment, which we necessarily observe, the privilege truly serves privacy interests; but the Court has never on any ground, personal

privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence that, in the Court’s view,

did not involve compelled testimonial self-incrimination of some

sort.” 656 Furthermore, it wrote, “[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.” 657

So what remains of informational privacy? A cryptic opinion in

Whalen v. Roe 658 may indicate the Court’s continuing willingness

to recognize privacy interests as independent constitutional rights.

At issue was a state’s pervasive regulation of prescription drugs with

abuse potential, and a centralized computer record-keeping system

through which prescriptions, including patient identification, could

be stored. The scheme was attacked on the basis that it invaded

privacy interests against disclosure and privacy interests involving

autonomy of persons in choosing whether to have the medication.

The Court appeared to agree that both interests are protected, but

because the scheme was surrounded with extensive security protection against disclosure beyond that necessary to achieve the purposes of the program it was not thought to “pose a sufficiently grievous threat to either interest to establish a constitutional violation.” 659

Lower court cases have raised substantial questions as to whether

might be presented by subpoena of a personal diary.” Fisher v. United States, 425

U.S. 391, 401 n.7 (1976).

655 425 U.S. 391 (1976).

656 425 U.S. at 399.

657 425 U.S. at 401.

658 429 U.S. 589 (1977).

659 429 U.S. at 598–604. The Court cautioned that it had decided nothing about

the privacy implications of the accumulation and disclosure of vast amounts of information in data banks. Safeguarding such information from disclosure “arguably has

its roots in the Constitution,” at least “in some circumstances,” the Court seemed to

indicate. Id. at 605. Compare id. at 606 (Justice Brennan concurring). What the Court’s

careful circumscription of the privacy issue through balancing does to the concept is

unclear after Nixon v. Administrator of General Services, 433 U.S. 425, 455–65 (1977)

(stating that an invasion of privacy claim “cannot be considered in abstract [and]

1944 AMENDMENT 14—RIGHTS GUARANTEED
this case established a “fundamental right” to informational privacy, and instead found that some as yet unspecified balancing test

or intermediate level of scrutiny was at play.660

More than two decades after Whalen, the Court remains ambivalent about whether such a privacy right exists. In its 2011 decision

in NASA v. Nelson, the Supreme Court unanimously ruled against

28 NASA workers who argued that the extensive background checks

required to work at NASA facilities violated their constitutional privacy rights.661 In so doing, the Court assumed without deciding that

a right to informational privacy could be protected by the Constitution and instead held that the right does not prevent the government from asking reasonable questions in light of the government’s interest as an employer and in light of the statutory protections

that provide meaningful checks against unwarranted disclosures.662 As a result, the questions about the scope of the right to

informational privacy suggested by Whalen remain.

The Court has also briefly considered yet another aspect of privacy—the idea that certain personal activities that were otherwise

unprotected could obtain some level of constitutional protection by

being performed in particular private locations, such as the home.

In Stanley v. Georgia,

663 the Court held that the government may

not make private possession of obscene materials for private use a

crime. Normally, investigation and apprehension of an individual

for possessing pornography in the privacy of the home would raise

obvious First Amendment free speech and the Fourth Amendment

search and seizure issues. In this case, however, the material was

obscenity, unprotected by the First Amendment, and the police had

a valid search warrant, obviating Fourth Amendment concerns.664

Nonetheless, the Court based its decision upon a person’s protected

right to receive what information and ideas he wishes, which derives from the “right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy,” 665 and from the failure of the state to either justify protecting

. . . must be weighed against the public interest”). But see id. at 504, 525–36 (Chief

Justice Burger dissenting), and 545 n.1 (Justice Rehnquist dissenting).

660 See, e.g., Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978) (“. . . we

believe that the balancing test, more common to due process claims, is appropriate

here.”).

661 See 562 U.S. 134 (2011).

662 Id. at 148–56.

663 394 U.S. 557 (1969).

664 In fact, the Court passed over a subsidiary Fourth Amendment issue that

was available for decision in favor of a broader resolution. 394 U.S. at 569–72. (Stewart, J., concurring).

665 394 U.S. at 564–65.

AMENDMENT 14—RIGHTS GUARANTEED 1945
an individual from himself or to show empirical proof of such activity harming society.666

The potential significance of Stanley was enormous, as any number of illegal personal activities, such as drug use or illegal sex acts,

could arguably be practiced in the privacy of one’s home with little

apparent effect on others. Stanley, however, was quickly restricted

to the particular facts of the case, namely possession of obscenity

in the home.667 In Paris Adult Theatre I v. Slaton,

668 which upheld

the government’s power to prevent the showing of obscene material

in an adult theater, the Court recognized that governmental interests in regulating private conduct could include the promotion of

individual character and public morality, and improvement of the

quality of life and “tone” of society. “It is argued that individual ‘free

will’ must govern, even in activities beyond the protection of the

First Amendment and other constitutional guarantees of privacy, and

that government cannot legitimately impede an individual’s desire

to see or acquire obscene plays, movies, and books. We do indeed

base our society on certain assumptions that people have the capacity for free choice. Most exercises of individual free choice—those

in politics, religion, and expression of ideas—are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. . . . [Many laws

are enacted] to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition.” 669

666 The rights noted by the Court were held superior to the interests Georgia

asserted to override them. That is, first, the state was held to have no authority to

protect an individual’s mind from the effects of obscenity, to promote the moral content of one’s thoughts. Second, the state’s assertion that exposure to obscenity may

lead to deviant sexual behavior was rejected on the basis of a lack of empirical support and, more important, on the basis that less intrusive deterrents were available. Thus, a right to be free of governmental regulation in this area was clearly

recognized.

667 United States v. Reidel, 402 U.S. 351, 354–56 (1971) (no right to distribute

obscene material for private use); United States v. Thirty-seven Photographs, 402

U.S. 363, 375–76 (1971) (no right to import obscene material for private use); United

States v. 12 200–Ft. Reels of Film, 413 U.S. 123 (1973) (no right to acquire obscene

material for private use); Osborne v. Ohio, 495 U.S. 103, 109–111 (1990) (no right to

possess child pornography in the home).

668 413 U.S. 49 (1973).

669 413 U.S. at 64. Similar themes can be found in Roe v. Wade, 410 U.S. 113,

148 (1972), decided the year before. Because the Court had determined that the right

to obtain an abortion constituted a protected “liberty,” the State was required to justify its proscription by a compelling interest. Departing from a laissez faire, “free

will” approach to individual autonomy, the Court recognized protecting the health of

the mother as a valid interest. The Court also mentioned but did not rule upon a

state interest in protecting morality. The Court was referring not to the morality of

abortion, but instead to the promotion of sexual morality through making abortion

unavailable. Roe v. Wade, 410 U.S. 113, 148 (1972).

1946 AMENDMENT 14—RIGHTS GUARANTEED
Furthermore, continued the Court in Paris Adult Theatre I, “[o]ur

Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution

incorporates the proposition that conduct involving consenting adults

is always beyond state regulation is a step we are unable to take. . . .

The issue in this context goes beyond whether someone, or even

the majority, considers the conduct depicted as ‘wrong’ or ‘sinful.’

The States have the power to make a morally neutral judgment that

public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize . . . the States’ ‘right . . . to

maintain a decent society.’ ” 670

Ultimately, the idea that acts should be protected not because

of what they are, but because of where they are performed, may

have begun and ended with Stanley. The limited impact of Stanley

was reemphasized in Bowers v. Hardwick.

671 The Court in Bowers,

finding that there is no protected right to engage in homosexual

sodomy in the privacy of the home, held that Stanley did not implicitly create protection for “voluntary sexual conduct [in the home]

between consenting adults.” 672 Instead, the Court found Stanley “firmly

grounded in the First Amendment,” 673 and noted that extending the

reasoning of that case to homosexual conduct would result in protecting all voluntary sexual conduct between consenting adults, including adultery, incest, and other sexual crimes. Although Bowers

has since been overruled by Lawrence v. Texas 674 based on precepts of personal autonomy, the latter case did not appear to signal

the resurrection of the doctrine of protecting activities occurring in

private places.

670 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57–63, 63–64, 68–69 (1973); see

also id. at 68 n.15. Although it denied a privacy right to view obscenity in a theater,

the Court recognized that, in order to protect otherwise recognized autonomy rights,

the privacy right might need to be expanded to a variety of different locations: “[T]he

constitutionally protected privacy of family, marriage, motherhood, procreation, and

child rearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor’s office, the hospital,

the hotel room, or as otherwise required to safeguard the right to intimacy involved.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66 n.13 (1973). Thus, arguably, the constitutional protection of places (as opposed to activities) arises not because of any inherent privacy of the location, but because the protected activities

normally take place in those locales.

671 478 U.S. 186 (1986).

672 478 U.S. at 195–96. Dissenting, Justice Blackmun challenged the Court’s characterization of Stanley, suggesting that it had rested as much on the Fourth as on

the First Amendment, and that “the right of an individual to conduct intimate relationships in . . . his or her own home [is] at the heart of the Constitution’s protection of privacy.” Id. at 207–08.

673 478 U.S. 186, 195 (1986).

674 539 U.S. 558 (2003).

AMENDMENT 14—RIGHTS GUARANTEED 1947
So, what of the expansion of the right to privacy under the rubric of personal autonomy? The Court speaking in Roe in 1973 made

it clear that, despite the importance of its decision, the protection

of personal autonomy was limited to a relatively narrow range of

behavior. “The Constitution does not explicitly mention any right

of privacy. In a line of decisions, however, . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . . These

decisions make it clear that only personal rights that can be deemed

‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v.

Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has

some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316

U.S. 535, 541–42 (1942); contraception, Eisenstadt v. Baird, 405 U.S.

at 453–54; id. at 460, 463–65 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944);

and child rearing and education, Pierce v. Society of Sisters, 268 U.S.

510, 535 (1925), Meyer v. Nebraska, supra.” 675

Despite the limiting language of Roe, the concept of privacy still

retained sufficient strength to occasion major constitutional decisions. For instance, in the 1977 case of Carey v. Population Services Int’l,

676 recognition of the “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 16.677 The Court sig675 Roe v. Wade, 410 U.S. 113, 152 (1973).

676 431 U.S. 678 (1977).

677 431 U.S. at 684–91. The opinion of the Court on the general principles drew

the support of Justices Brennan, Stewart, Marshall, Blackmun, and Stevens. Justice White concurred in the result in the voiding of the ban on access to adults while

not expressing an opinion on the Court’s general principles. Id. at 702. Justice Powell agreed the ban on access to adults was void but concurred in an opinion significantly more restrained than the opinion of the Court. Id. at 703. Chief Justice Burger,

id. at 702, and Justice Rehnquist, id. at 717, dissented.

The limitation of the number of outlets to adults “imposes a significant burden

on the right of the individuals to use contraceptives if they choose to do so” and was

unjustified by any interest put forward by the state. The prohibition on sale to minors was judged not by the compelling state interest test, but instead by inquiring

whether the restrictions serve “any significant state interest . . . that is not present

in the case of an adult.” This test is “apparently less rigorous” than the test used

with adults, a distinction justified by the greater governmental latitude in regulating the conduct of children and the lesser capability of children in making important decisions. The attempted justification for the ban was rejected. Doubting the

permissibility of a ban on access to contraceptives to deter minors’ sexual activity,

the Court even more doubted, because the State presented no evidence, that limiting access would deter minors from engaging in sexual activity. Id. at 691–99. This

1948 AMENDMENT 14—RIGHTS GUARANTEED
nificantly extended the Griswold-Baird line of cases so as to make

the “decision whether or not to beget or bear a child” a “constitutionally protected right of privacy” interest that government may

not burden without justifying the limitation by a compelling state

interest and by a regulation narrowly drawn to express only that

interest or interests.

For a time, the limits of the privacy doctrine were contained by

the 1986 case of Bowers v. Hardwick,

678 where the Court by a 5–4

vote roundly rejected the suggestion that the privacy cases protecting “family, marriage, or procreation” extend protection to private

consensual homosexual sodomy,679 and also rejected the more comprehensive claim that the privacy cases “stand for the proposition

that any kind of private sexual conduct between consenting adults

is constitutionally insulated from state proscription.” 680 Heavy reliance was placed on the fact that prohibitions on sodomy have “ancient roots,” and on the fact that half of the states still prohibited

the practice.681 The privacy of the home does not protect all behavior from state regulation, and the Court was “unwilling to start down

[the] road” of immunizing “voluntary sexual conduct between consenting adults.” 682 Interestingly, Justice Blackmun, in dissent, was

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.

678 478 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.

679 “[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.

680 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. 478 U.S. at 191. The Court concluded

that there was no “fundamental right [of] homosexuals to engage in acts of consensual sodomy,” as homosexual sodomy is neither a fundamental liberty “implicit in

the concept of ordered liberty” nor is it “deeply rooted in this Nation’s history and

tradition.” 478 U.S. at 191–92.

681 478 U.S. at 191–92. Chief Justice Burger’s brief concurring opinion amplified this theme, concluding that constitutional protection for “the act of homosexual

sodomy . . . would . . . cast aside millennia of moral teaching.” Id. at 197. Justice

Powell cautioned that Eighth Amendment proportionality principles might limit the

severity with which states can punish the practices (Hardwick had been charged

but not prosecuted, and had initiated the action to have the statute under which he

had been charged declared unconstitutional). Id.

682 The Court voiced concern that “it would be difficult . . . to limit the claimed

right to homosexual conduct while leaving exposed to prosecution adultery, incest,

and other sexual crimes even though they are committed in the home.” 478 U.S. at

195–96. Dissenting Justices Blackmun (id. at 209 n.4) and Stevens (id. at 217–18)

suggested that these crimes are readily distinguishable.

AMENDMENT 14—RIGHTS GUARANTEED 1949
most critical of the Court’s framing of the issue as one of homosexual sodomy, as the sodomy statute at issue was not so limited.683

Yet, Lawrence v. Texas,

684 by overruling Bowers, brought the outer

limits of noneconomic substantive due process into question by once

again using the language of “privacy” rights. Citing the line of personal autonomy cases starting with Griswold, the Court found that

sodomy laws directed at homosexuals “seek to control a personal

relationship that, whether or not entitled to formal recognition in

the law, is within the liberty of persons to choose without being punished as criminals. . . . When sexuality finds overt expression in

intimate conduct with another person, the conduct can be but one

element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to

make this choice.” 685

Although it quarreled with the Court’s finding in Bowers v.

Hardwick that the proscription against homosexual behavior had

“ancient roots,” Lawrence did not attempt to establish that such behavior was in fact historically condoned. This raises the question

as to what limiting principles are available in evaluating future arguments based on personal autonomy. Although the Court seems to

recognize that a state may have an interest in regulating personal

relationships where there is a threat of “injury to a person or abuse

of an institution the law protects,” 686 it also seems to reject reliance on historical notions of morality as guides to what personal

relationships are to be protected.687 Thus, the parameters for regulation of sexual conduct remain unclear.

683 478 U.S. at 199. The Georgia statute at issue, like most sodomy statutes,

prohibits the practices regardless of the sex or marital status of the participants.

See id. at 188 n.1. Justice Stevens too focused on this aspect, suggesting that the

earlier privacy cases clearly bar a state from prohibiting sodomy by married couples,

and that Georgia had not justified selective application to homosexuals. Id. at 219.

Justice Blackmun would instead have addressed the issue more broadly as to whether

the law violated an individual’s privacy right “to be let alone.” The privacy cases are

not limited to protection of the family and the right to procreation, he asserted, but

instead stand for the broader principle of individual autonomy and choice in matters of sexual intimacy. 478 U.S. at 204–06. This position was rejected by the majority, however, which held that the thrust of the fundamental right of privacy in this

area is one functionally related to “family, marriage, or procreation.” 478 U.S. at

191. See also Paul v. Davis, 424 U.S. 693, 713 (1976).

684 539 U.S. 558 (2003).

685 539 U.S. at 567.

686 539 U.S. at 567.

687 The Court noted with approval Justice Stevens’ dissenting opinion in Bowers v. Hardwick, stating “that a governing majority in a State has traditionally viewed

a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” 539 U.S. at 577–78, citing Bowers v. Hardwick,

478 U.S. at 216.

1950 AMENDMENT 14—RIGHTS GUARANTEED
For instance, the extent to which the government may regulate

the sexual activities of minors has not been established.688 Analysis of this questions is hampered, however, because the Court has

still not explained what about the particular facets of human relationships—marriage, family, procreation—gives rise to a protected

liberty, and how indeed these factors vary significantly enough from

other human relationships. The Court’s observation in Roe v. Wade

“that only personal rights that can be deemed ‘fundamental’ are included in this guarantee of personal privacy,” occasioning justification by a “compelling” interest,689 provides little elucidation.690

Despite the Court’s decision in Lawrence, there is a question as

to whether the development of noneconomic substantive due process will proceed under an expansive right of “privacy” or under

the more limited “liberty” set out in Roe. There still appears to be

a tendency to designate a right or interest as a right of privacy when

the Court has already concluded that it is valid to extend an existing precedent of the privacy line of cases. Because much of this protection is also now settled to be a “liberty” protected under the due

process clauses, however, the analytical significance of denominating the particular right or interest as an element of privacy seems

open to question.

Family Relationships.— Starting with Meyer and Pierce,691 the

Court has held that “the Constitution protects the sanctity of the

family precisely because the institution of the family is deeply rooted

in this Nation’s history and tradition.” 692 For instance, the right to

688 The Court reserved this question in Carey, 431 U.S. at 694 n.17 (plurality

opinion), although Justices White, Powell, and Stevens in concurrence seemed to see

no barrier to state prohibition of sexual relations by minors. Id. at 702, 703, 712.

689 Roe v. Wade, 410 U.S. 113, 152 (1973). The language is quoted in full in Carey,

431 U.S. at 684–85.

690 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 not its social significance but is whether it is “explicitly or implicitly guaranteed by the Constitution.” San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33–34

(1973). That this limitation has not been honored with respect to equal protection

analysis or due process analysis can be easily discerned. 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).

691 Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S.

510 (1928).

692 Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality). Unlike

the liberty interest in property, which derives from early statutory law, these liberties spring instead from natural law traditions, as they are “intrinsic human rights.”

Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977). These rights,

however, do not extend to all close relationships. Bowers v. Hardwick, 478 U.S. 186

(1986) (same sex relationships).

AMENDMENT 14—RIGHTS GUARANTEED 1951
marry is a fundamental right protected by the Due Process Clause,693

and only “reasonable regulations” of marriage may be imposed.694

Thus, the Court has held that a state may not deny the right to

marry to someone who has failed to meet a child support obligation, as the state already has numerous other means for exacting

compliance with support obligations.695 In fact, any regulation that

affects the ability to form, maintain, dissolve, or resolve conflicts

within a family is subject to rigorous judicial scrutiny.

In 2015, in Obergefell v. Hodges, the Supreme Court clarified

that the “right to marry” applies with “equal force” to same-sex couples,

as it does to opposite-sex couples, holding that the Fourteenth Amendment requires a state to license a marriage between two people of

the same sex and to recognize a marriage between two people of

the same sex when their marriage was lawfully licensed and performed out of state.696 In so holding, the Court recognized marriage as being an institution of “both continuity and change,” and,

as a consequence, recent shifts in public attitudes respecting gay

individuals and more specifically same-sex marriage necessarily informed the Court’s conceptualization of the right to marry.697 More

broadly, the Obergefell Court recognized that the right to marry is

grounded in four “principles and traditions.” These involve the concepts that (1) marriage (and choosing whom to marry) is inherent

to individual autonomy protected by the Constitution; (2) marriage

is fundamental to supporting a union of committed individuals; (3)

marriage safeguards children and families; and (4) marriage is essential to the nation’s social order, because it is at the heart of many

legal benefits.698 With this conceptualization of the right to marry

in mind, the Court found no difference between same- and oppositesex couples with respect to any of the right’s four central principles, concluding that a denial of marital recognition to same-sex

couples ultimately “demean[ed]” and “stigma[tized]” those couples

and any children resulting from such partnerships.699 Given this

conclusion, the Court held that, while limiting marriage to oppositesex couples may have once seemed “natural,” such a limitation was

693 Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S.

479, 486 (1965); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–40 (1974);

Zablocki v. Redhail, 434 U.S. 374, 383–87 (1978).

694 Zablocki v. Redhail, 434 U.S. 374, 386 (1978).

695 Zablocki v. Redhail, 434 U.S. 374 (1978). The majority of the Court deemed

the statute to fail under equal protection, whereas Justices Stewart and Powell found

a violation of due process. Id. at 391, 396. Compare Califano v. Jobst, 434 U.S. 47

(1977).

696 See 576 U.S. ___, No. 14–556, slip op. at 12 (2015).

697 See id. at 6–10.

698 See id. at 12–16.

699 See id. at 17.

1952 AMENDMENT 14—RIGHTS GUARANTEED
inconsistent with the right to marriage inherent in the “liberty” of

the person as protected by the Fourteenth Amendment.700 The open

question that remains respecting the substantive due process right

to marriage post-Obergefell is whether the right of marriage, as broadly

envisioned by the Court in the 2015 case, can extend to protect and

require state recognition of other committed, autonomous relationships, such as polyamorous relationships.701

There is also a constitutional right to live together as a family,702 and this right is not limited to the nuclear family. Thus, a

neighborhood that is zoned for single-family occupancy, and that defines “family” so as to prevent a grandmother from caring for two

grandchildren of different children, was found to violate the Due

Process Clause.703 And the concept of “family” may extend beyond

the biological relationship to the situation of foster families, although the Court has acknowledged that such a claim raises complex and novel questions, and that the liberty interests may be limited.704 On the other hand, the Court has held that the presumption

of legitimacy accorded to a child born to a married woman living

700 See id. at 17–18. The Court also grounded its Obergefell decision in the Equal

Protection Clause of the Fourteenth Amendment. Id. at 19 (“The right of same-sex

couples to marry that is part of the liberty promised by the Fourteenth Amendment

is derived, too, from that Amendment’s guarantee of the equal protection of the laws.”).

For a discussion of Obergefell’s equal protection holding, see infra Fourteenth Amendment: Equal Protection of the Laws: The New Equal Protection: Sexual Orientation.

701 See, e.g., Obergefell, slip op. at 20 (Roberts, C.J., dissenting) (“It is striking

how much of the majority’s reasoning would apply with equal force to the claim of a

fundamental right to plural marriage.”); but see Joanna L. Grossman & Lawrence

M. Friedman, Is Three Still a Crowd? Polygamy and the Law After Obergefell v.

Hodges, VERDICT (July 7, 2015), available at https://verdict.justia.com/2015/07/07/isthree-still-a-crowd-polygamy-and-the-law-after-obergefell-v-hodges (“Obergefell did not

really open the door to plural marriages.”). For an extended debate on whether the

right to marry protects plural marriages, compare Ronald C. Den Otter, Three May

Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 EMORY

L.J. 1977 (2015), with John Witte, Jr., Why Two in One Flesh? The Western Case for

Monogamy Over Polygamy, 64 EMORY L.J. 1675 (2015).

702 “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).

703 Moore v. City of East Cleveland, 431 U.S. 494 (1977) (plurality opinion). The

fifth vote, decisive to the invalidity of the ordinance, was on other grounds. Id. at

513.

704 Smith v. Organization of Foster Families, 431 U.S. 816 (1977). As the Court

noted, the rights of a natural family arise independently of statutory law, whereas

the ties that develop between a foster parent and a foster child arise as a result of

state-ordered arrangement. As these latter liberty interests arise from positive law,

they are subject to the limited expectations and entitlements provided under those

laws. Further, in some cases, such liberty interests may not be recognized without

derogation of the substantive liberty interests of the natural parents. Although Smith

AMENDMENT 14—RIGHTS GUARANTEED 1953
with her husband is valid even to defeat the right of the child’s biological father to establish paternity and visitation rights.705

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.706 The Court has, however, imposed limits on the ability of a court to require that children be made available for visitation with grandparents and other

third parties. In Troxel v. Granville,

707 the Court evaluated a Washington State law that allowed “any person” to petition a court “at

any time” to obtain visitation rights whenever visitation “may serve

the best interests” of a child. Under this law, a child’s grandparents were awarded more visitation with a child than was desired

by the sole surviving parent. A plurality of the Court, noting the

“fundamental rights of parents to make decisions concerning the care,

custody and control of their children,” 708 reversed this decision, noting the lack of deference to the parent’s wishes and the contravention of the traditional presumption that a fit parent will act in the

best interests of a child.

Liberty Interests of People with Mental Disabilities: Civil

Commitment and Treatment.—The recognition of liberty rights

for people with mental disabilities who are involuntarily committed or who voluntarily seek commitment to public institutions is

potentially a major development in substantive due process. The states,

pursuant to their parens patriae power, have a substantial interest

in institutionalizing persons in need of care, both for the protection

of such people themselves and for the protection of others.709 A state,

however, “cannot constitutionally confine without more a nondangerdoes not define the nature of the interest of foster parents, it would appear to be

quite limited and attenuated. Id. at 842–47. In a conflict between natural and foster

families, a court is likely to defer to a typical state process which makes such decisions based on the best interests of the child. See Quilloin v. Walcott, 434 U.S. 246

(1978).

705 Michael H. v. Gerald D., 491 U.S. 110 (1989). There was no opinion of the

Court. A majority of Justices (Brennan, Marshall, Blackmun, Stevens, White) was

willing to recognize that the biological father has a liberty interest in a relationship

with his child, but Justice Stevens voted with the plurality (Scalia, Rehnquist, O’Connor,

Kennedy) because he believed that the statute at issue adequately protected that

interest.

706 The clearest conflict to date was presented by state law giving a veto to parents over their minor children’s right to have an abortion. Planned Parenthood v.

Danforth, 428 U.S. 52 (1976); Planned Parenthood v. Casey, 503 U.S. 833 (1992).

See also Parham v. J. R., 442 U.S. 584 (1979) (parental role in commitment of child

for treatment of mental illness).

707 530 U.S. 57 (2000).

708 530 U.S. at 66.

709 These principles have no application to persons not held in custody by the

state. DeShaney v. Winnebago County Social Servs. Dep’t, 489 U.S. 189 (1989) (no

due process violation for failure of state to protect an abused child from his parent,

1954 AMENDMENT 14—RIGHTS GUARANTEED
ous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or

friends.” 710 Moreover, a person who is constitutionally confined “enjoys constitutionally protected interests in conditions of reasonable

care and safety, reasonably nonrestrictive confinement conditions,

and such training as may be required by these interests.” 711 Influential lower court decisions have also found a significant right to

treatment 712 or “habilitation,” 713 although the Supreme Court’s approach in this area has been tentative.

For instance, in Youngberg v. Romeo, the Court recognized a liberty right to “minimally adequate or reasonable training to ensure

safety and freedom from undue restraint.” 714 Although the lower

court had agreed that residents at a state mental hospital are entitled to “such treatment as will afford them a reasonable opportunity to acquire and maintain those life skills necessary to cope as

effectively as their capacities permit,” 715 the Supreme Court found

that the plaintiff had reduced his claim to “training related to safety

and freedom from restraints.” 716 But the Court’s concern for federeven when the social service agency had been notified of possible abuse, and possibility had been substantiated through visits by social worker).

710 O’Connor v. Donaldson, 422 U.S. 563, 576 (1975). See Jackson v. Indiana,

406 U.S. 715 (1972); Vitek v. Jones, 445 U.S. 480, 491–94 (1980).

711 Youngberg v. Romeo, 457 U.S. 307, 324 (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”).

712 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, 422 U.S. 563 (1975).

713 “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; ellipses and

brackets supplied by the Court).

714 Youngberg v. Romeo, 457 U.S. 307, 319 (1982).

715 457 U.S. at 318 n.23.

716 457 U.S. at 317–18. Concurring, Justices Blackmun, Brennan, and O’Connor,

argued that due process guaranteed patients at least that training necessary to prevent them from losing the skills they entered the institution with. Id. at 325. Chief

Justice Burger rejected any protected interest in training. Id. at 329. The Court had

AMENDMENT 14—RIGHTS GUARANTEED 1955
alism, its reluctance to approve judicial activism in supervising institutions, and its recognition of the budgetary constraints associated with state provision of services caused it to hold that lower

federal courts must defer to professional decision-making to determine what level of care was adequate. Professional decisions are

presumptively valid and liability can be imposed “only when the

decision by the professional is such a substantial departure from

accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” 717 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.718

The Court’s resolution of a case involving persistent sexual offenders suggests that state civil commitment systems, besides confining the dangerously mentally ill, may also act to incapacitate persons predisposed to engage in specific criminal behaviors. In Kansas

v. Hendricks,

719 the Court upheld a Kansas law that allowed civil

commitment without a showing of “mental illness,” so that a defendant diagnosed as a pedophile could be committed based on his having a “mental abnormality” that made him “likely to engage in acts

of sexual violence.” Although the Court minimized the use of this

expanded nomenclature,720 the concept of “mental abnormality” appears both more encompassing and less defined than the concept of

“mental illness.” It is unclear how, or whether, the Court would distinguish this case from the indefinite civil commitment of other realso 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 thereby

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 that had relied on the circuit’s 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”).

717 457 U.S. at 323.

718 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). The Supreme Court has limited the

injunctive powers of the federal courts in similar situations.

719 521 U.S. 346 (1997).

720 521 U.S. at 359. But see Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (holding that a state can not hold a person suffering from a personality disorder without

clear and convincing proof of a mental illness).

1956 AMENDMENT 14—RIGHTS GUARANTEED
cidivists such as drug offenders. A subsequent opinion does seem to

narrow the Hendricks holding so as to require an additional finding that the defendant would have difficulty controlling his or her

behavior.721

Still other issues await exploration.722 Additionally, federal legislation is becoming extensive,723 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 that the Due Process Clause protects.724

“Right to Die”.—Although the popular term “right to die” has

been used to describe the debate over end-of-life decisions, the underlying issues include a variety of legal concepts, some distinct and

some overlapping. For instance, “right to die” could include issues

of suicide, passive euthanasia (allowing a person to die by refusal

or withdrawal of medical intervention), assisted suicide (providing

a person the means of committing suicide), active euthanasia (killing another), and palliative care (providing comfort care which accelerates the death process). Recently, a new category has been

suggested—physician-assisted suicide—that appears to be an uncertain blend of assisted suicide or active euthanasia undertaken by a

licensed physician.

There has been little litigation of constitutional issues surrounding suicide generally, although Supreme Court dicta seems to favor

the notion that the state has a constitutionally defensible interest

in preserving the lives of healthy citizens.725 On the other hand,

the right of a seriously ill person to terminate life-sustaining medical treatment has been addressed, but not squarely faced. In Cruzan

v. Director, Missouri Department of Health,

726 the Court, rather than

directly addressing the issue, “assume[d]” that “a competent per721 Kansas v. Crane, 534 U.S. 407 (2002).

722 See Developments in the Law: Civil Commitment of the Mentally Ill, 87 HARV.

L. REV. 1190 (1974). In Mills v. Rogers, 457 U.S. 291 (1982), the Court had before it

the issue of the due process right of committed mental patients at state hospitals to

refuse administration of antipsychotic drugs. An intervening decision of the state’s

highest court had measurably strengthened the patients’ rights under both state and

federal law and the Court remanded for reconsideration in light of the state court

decision. See also Rennie v. Klein, 653 F.2d 836 (3d Cir. 1981).

723 Developmentally Disabled Assistance and Bill of Rights Act of 1975, Pub. L.

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.

724 See, e.g., Mills v. Rogers, 457 U.S. 291, 299–300 (1982). On the question of

procedural due process rights that apply to civil commitments, see “The Problem of

Civil Commitment,” infra.

725 Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 280 (1990)

(“We do not think that a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death”).

726 497 U.S. 261 (1990).

AMENDMENT 14—RIGHTS GUARANTEED 1957
son [has] a constitutionally protected right to refuse lifesaving hydration and nutrition.” 727 More importantly, however, a majority of

the Justices separately declared that such a liberty interest exists.728 Yet, it is not clear how actively the Court would seek to protect this right from state regulation.

In Cruzan, which involved a patient in a persistent vegetative

state, the Court upheld a state requirement that there must be “clear

and convincing evidence” of a patient’s previously manifested wishes

before nutrition and hydration could be withdrawn. Despite the existence of a presumed due process right, the Court held that a state

is not required to follow the judgment of the family, the guardian,

or “anyone but the patient herself” in making this decision.729 Thus,

in the absence of clear and convincing evidence that the patient had

expressed an interest not to be sustained in a persistent vegetative

state, or that she had expressed a desire to have a surrogate make

such a decision for her, the state may refuse to allow withdrawal of

nutrition and hydration.730

Despite the Court’s acceptance of such state requirements, the

implications of the case are significant. First, the Court appears,

without extensive analysis, to have adopted the position that refusing nutrition and hydration is the same as refusing other forms of

medical treatment. Also, the Court seems ready to extend such right

not only to terminally ill patients, but also to severely incapacitated patients whose condition has stabilized.731 However, the Court

made clear in a subsequent case, Washington v. Glucksberg,732 that

it intends to draw a line between withdrawal of medical treatment

and more active forms of intervention.

In Glucksberg, the Supreme Court rejected an argument that

the Due Process Clause provides a terminally ill individual the right

to seek and obtain a physician’s aid in committing suicide. Review727 497 U.S. at 279.

728 See 497 U.S. at 287 (O’Connor, concurring); id. at 304–05 (Brennan, joined

by Marshall and Blackmun, dissenting); id. at 331 (Stevens, dissenting).

729 497 U.S. at 286.

730 “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 constitutionally protected interests of the individual.”

497 U.S. at 281–82.

731 There was testimony that the patient in Cruzan could be kept “alive” for

about 30 years if nutrition and hydration were continued.

732 521 U.S. 702 (1997). In the companion case of Vacco v. Quill, 521 U.S. 793

(1997), the Court also rejected an argument that a state which prohibited assisted

suicide but which allowed termination of medical treatment resulting in death unreasonably discriminated against the terminally ill in violation of the Equal Protection Clause of the Fourteenth Amendment.

1958 AMENDMENT 14—RIGHTS GUARANTEED
ing a challenge to a state statutory prohibition against assisted suicide, the Court noted that it moves with “utmost care” before breaking new ground in the area of liberty interests.733 The Court pointed

out that suicide and assisted suicide have long been disfavored by

the American judicial system, and courts have consistently distinguished between passively allowing death to occur and actively causing such death. The Court rejected the applicability of Cruzan and

other liberty interest cases,734 noting that while many of the interests protected by the Due Process Clause involve personal autonomy, not all important, intimate, and personal decisions are so

protected. By rejecting the notion that assisted suicide is constitutionally protected, the Court also appears to preclude constitutional protection for other forms of intervention in the death process, such as suicide or euthanasia.735

PROCEDURAL DUE PROCESS: CIVIL

Generally

Due process requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to

the arbitrary exercise of government power.736 Exactly what procedures are needed to satisfy due process, however, will vary depending on the circumstances and subject matter involved.737 One of the

basic criteria used to establish whether due process is satisfied is

whether such procedure was historically required in like circumstances.

733 521 U.S. at 720.

734 E.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (upholding a liberty

interest in terminating pregnancy).

735 A passing reference by Justice O’Connor in a concurring opinion in Glucksberg

and its companion case Vacco v. Quill may, however, portend a liberty interest in

seeking pain relief, or “palliative” care. Glucksberg and Vacco, 521 U.S. at 736–37

(Justice O’Connor, concurring).

736 Thus, where a litigant had the benefit of a full and fair trial in the state

courts, and his rights are measured, not by laws made to affect him individually,

but by general provisions of law applicable to all those in like condition, he is not

deprived of property without due process of law, even if he can be regarded as deprived of his property by an adverse result. Marchant v. Pennsylvania R.R., 153 U.S.

380, 386 (1894).

737 Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884). “Due process of law is

[process which], following the forms of law, is appropriate to the case and just to

the parties affected. It must be pursued in the ordinary mode prescribed by law; it

must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether

sanctioned by age or custom or newly devised in the discretion of the legislative

power, which regards and preserves these principles of liberty and justice, must be

held to be due process of law.” Id. at 708; Accord, Hurtado v. California, 110 U.S.

516, 537 (1884).

AMENDMENT 14—RIGHTS GUARANTEED 1959
Relevance of Historical Use.—The requirements of due process are determined in part by an examination of the settled usages and modes of proceedings of the common and statutory law of

England during pre-colonial times and in the early years of this country.738 In other words, the antiquity of a legal procedure is a factor

weighing in its favor. However, it does not follow that a procedure

settled in English law and adopted in this country is, or remains,

an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be “fastened upon American jurisprudence like a strait jacket, only to be

unloosed by constitutional amendment.” 739 Fortunately, the states

are not tied down by any provision of the Constitution to the practice and procedure that existed at the common law, but may avail

themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary.740

Non-Judicial Proceedings.—A court proceeding is not a requisite of due process.741 Administrative and executive proceedings

are not judicial, yet they may satisfy the Due Process Clause.742

Moreover, the Due Process Clause does not require de novo judicial

review of the factual conclusions of state regulatory agencies,743 and

may not require judicial review at all.744 Nor does the Fourteenth

Amendment prohibit a state from conferring judicial functions upon

non-judicial bodies, or from delegating powers to a court that are

legislative in nature.745 Further, it is up to a state to determine to

738 Twining v. New Jersey, 211 U.S. 78, 101 (1908); Brown v. New Jersey, 175

U.S. 172, 175 (1899). “A process of law, which is not otherwise forbidden, must be

taken to be due process of law, if it can show the sanction of settled usage both in

England and this country.” Hurtado v. California, 110 U.S. at 529.

739 Twining, 211 U.S. at 101.

740 Hurtado v. California, 110 U.S. 516, 529 (1884); Brown v. New Jersey, 175

U.S. 172, 175 (1899); Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 244 (1944).

741 Ballard v. Hunter, 204 U.S. 241, 255 (1907); Palmer v. McMahon, 133 U.S.

660, 668 (1890).

742 For instance, proceedings to raise revenue by levying and collecting taxes

are not necessarily judicial proceedings, yet their validity is not thereby impaired.

McMillen v. Anderson, 95 U.S. 37, 41 (1877).

743 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).

744 See, e.g., Moore v. Johnson, 582 F.2d 1228, 1232 (9th Cir. 1978) (upholding

the preclusion of judicial review of decisions of the Veterans Administration regarding veterans’ benefits).

745 State statutes vesting in a parole board certain judicial functions, Dreyer v.

Illinois, 187 U.S. 71, 83–84 (1902), or conferring discretionary power upon administrative boards to grant or withhold permission to carry on a trade, New York ex rel.

Lieberman v. Van De Carr, 199 U.S. 552, 562 (1905), or vesting in a probate court

authority to appoint park commissioners and establish park districts, Ohio v. Akron

1960 AMENDMENT 14—RIGHTS GUARANTEED
what extent its legislative, executive, and judicial powers should be

kept distinct and separate.746

The Requirements of Due Process.—Although due process tolerates variances in procedure “appropriate to the nature of the case,” 747

it is nonetheless possible to identify its core goals and requirements. First, “[p]rocedural due process rules are meant to protect

persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” 748 Thus, the required

elements of due process are those that “minimize substantively unfair or mistaken deprivations” by enabling persons to contest the

basis upon which a state proposes to deprive them of protected interests.749 The core of these requirements is notice and a hearing

before an impartial tribunal. Due process may also require an opportunity for confrontation and cross-examination, and for discovery; that a decision be made based on the record, and that a party

be allowed to be represented by counsel.

(1) Notice. “An elementary and fundamental requirement of due

process in any proceeding which is to be accorded finality is notice

reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” 750 This may include an obligation, upon learning that an attempt at notice has failed, to take

“reasonable followup measures” that may be available.751 In addition, notice must be sufficient to enable the recipient to determine

what is being proposed and what he must do to prevent the depriPark Dist., 281 U.S. 74, 79 (1930), are not in conflict with the Due Process Clause

and present no federal question.

746 Carfer v. Caldwell, 200 U.S. 293, 297 (1906).

747 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).

748 Carey v. Piphus, 435 U.S. 247, 259 (1978). “[P]rocedural due process rules

are shaped by the risk of error inherent in the truth-finding process as applied to

the generality of cases.” Mathews v. Eldridge, 424 U.S. 319, 344 (1976).

749 Fuentes v. Shevin, 407 U.S. 67, 81 (1972). At times, the Court has also stressed

the dignitary importance of procedural rights, the worth of being able to defend one’s

interests even if one cannot change the result. Carey v. Piphus, 435 U.S. 247, 266–67

(1978); Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); Nelson v. Adams, 529 U.S.

460 (2000) (amendment of judgement to impose attorney fees and costs to sole shareholder of liable corporate structure invalid without notice or opportunity to dispute).

750 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

See also Richards v. Jefferson County, 517 U.S. 793 (1996) (res judicata may not

apply where taxpayer who challenged a county’s occupation tax was not informed of

prior case and where taxpayer interests were not adequately protected).

751 Jones v. Flowers, 547 U.S. 220, 235 (2006) (state’s certified letter, intended

to notify a property owner that his property would be sold unless he satisfied a tax

delinquency, was returned by the post office marked “unclaimed”; the state should

have taken additional reasonable steps to notify the property owner, as it would have

been practicable for it to have done so).

AMENDMENT 14—RIGHTS GUARANTEED 1961
vation of his interest.752 Ordinarily, service of the notice must be

reasonably structured to assure that the person to whom it is directed receives it.753 Such notice, however, need not describe the legal procedures necessary to protect one’s interest if such procedures are otherwise set out in published, generally available public

sources.754

(2) Hearing. “[S]ome form of hearing is required before an individual is finally deprived of a property [or liberty] interest.” 755 This

right is a “basic aspect of the duty of government to follow a fair

process of decision making when it acts to deprive a person of his

possessions. The purpose of this requirement is not only to ensure

abstract fair play to the individual. Its purpose, more particularly,

is to protect his use and possession of property from arbitrary encroachment . . . .” 756 Thus, the notice of hearing and the opportunity to be heard “must be granted at a meaningful time and in a

meaningful manner.” 757

(3) Impartial Tribunal. Just as in criminal and quasi-criminal

cases,758 an impartial decisionmaker is an essential right in civil

proceedings as well.759 “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.” 760 Thus, a showing of bias or of strong implications of bias

was deemed made where a state optometry board, made up of only

private practitioners, was proceeding against other licensed optometrists for unprofessional conduct because they were employed by

corporations. Since success in the board’s effort would redound to

752 Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970).

753 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).

754 City of West Covina v. Perkins, 525 U.S. 234 (1999).

755 Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “Parties whose rights are to

be affected are entitled to be heard.” Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233

(1863).

756 Fuentes v. Shevin, 407 U.S. 67, 80–81 (1972). See Joint Anti-Fascist Refugee

Committee v. McGrath, 341 U.S. 123, 170–71 (1951) (Justice Frankfurter concurring).

757 Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

758 Tumey v. Ohio, 273 U.S. 510 (1927)); In re Murchison, 349 U.S. 133 (1955).

759 Goldberg v. Kelly, 397 U.S. 254, 271 (1970).

760 Marshall v. Jerrico, 446 U.S. 238, 242 (1980); Schweiker v. McClure, 456 U.S.

188, 195 (1982).

1962 AMENDMENT 14—RIGHTS GUARANTEED
the personal benefit of private practitioners, the Court thought the

interest of the board members to be sufficient to disqualify them.761

There is, however, a “presumption of honesty and integrity in

those serving as adjudicators,” 762 so that the burden is on the objecting party to show a conflict of interest or some other specific

reason for disqualification of a specific officer or for disapproval of

the system. Thus, combining functions within an agency, such as

by allowing members of a State Medical Examining Board to both

investigate and adjudicate a physician’s suspension, may raise substantial concerns, but does not by itself establish a violation of due

process.763 The Court has also held that the official or personal stake

that school board members had in a decision to fire teachers who

had engaged in a strike against the school system in violation of

state law was not such so as to disqualify them.764 Sometimes, to

ensure an impartial tribunal, the Due Process Clause requires a

judge to recuse himself from a case. In Caperton v. A. T. Massey

Coal Co., Inc., the Court noted that “most matters relating to judicial disqualification [do] not rise to a constitutional level,” and that

“matters of kinship, personal bias, state policy, [and] remoteness of

interest, would seem generally to be matters merely of legislative

discretion.” 765 The Court added, however, that “[t]he early and leading case on the subject” had “concluded that the Due Process Clause

incorporated the common-law rule that a judge must recuse himself when he has ‘a direct, personal, substantial, pecuniary interest’ in a case.” 766 In addition, although “[p]ersonal bias or prejudice ‘alone would not be sufficient basis for imposing a constitutional

requirement under the Due Process Clause,’ ” there “are circum761 Gibson v. Berryhill, 411 U.S. 564 (1973). Or, the conduct of deportation hearings by a person who, while he had not investigated the case heard, was also an

investigator who must judge the results of others’ investigations just as one of them

would some day judge his, raised a substantial problem which was resolved through

statutory construction). Wong Yang Sung v. McGrath, 339 U.S. 33 (1950).

762 Schweiker v. McClure, 456 U.S. 188, 195 (1982); Withrow v. Larkin, 421 U.S.

35, 47 (1975); United States v. Morgan, 313 U.S. 409, 421 (1941).

763 Withrow v. Larkin, 421 U.S. 35 (1975). Where an administrative officer is

acting in a prosecutorial, rather than judicial or quasi-judicial role, an even lesser

standard of impartiality applies. Marshall v. Jerrico, 446 U.S. 238, 248–50 (1980)

(regional administrator assessing fines for child labor violations, with penalties going into fund to reimburse cost of system of enforcing child labor laws). But “traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in which

enforcement decisions of an administrator were motivated by improper factors or

were otherwise contrary to law.” Id. at 249.

764 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).

765 556 U.S. ___, No. 08–22, slip op. at 6 (2009) (citations omitted).

766 556 U.S. ___, No. 08–22, slip op. at 6, quoting Tumey v. Ohio, 273 U.S. 510,

523 (1927).

AMENDMENT 14—RIGHTS GUARANTEED 1963
stances ‘in which experience teaches that the probability of actual

bias on the part of the judge or decisionmaker is too high to be

constitutionally tolerable.’ ” 767 These circumstances include “where

a judge had a financial interest in the outcome of a case” or “a conflict arising from his participation in an earlier proceeding.” 768 In

such cases, “[t]he inquiry is an objective one. The Court asks not

whether the judge is actually, subjectively biased, but whether the

average judge in his position is ‘likely’ to be neutral, or whether

there is an unconstitutional ‘potential for bias.’ ” 769 In Caperton, a

company appealed a jury verdict of $50 million, and its chairman

spent $3 million to elect a justice to the Supreme Court of Appeals

of West Virginia at a time when “[i]t was reasonably foreseeable

. . . that the pending case would be before the newly elected justice.” 770 This $3 million was more than the total amount spent by

all other supporters of the justice and three times the amount spent

by the justice’s own committee. The justice was elected, declined to

recuse himself, and joined a 3-to-2 decision overturning the jury verdict. The Supreme Court, in a 5-to-4 opinion written by Justice Kennedy, “conclude[d] that there is a serious risk of actual bias—based

on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or

directing the judge’s election campaign when the case was pending

or imminent.” 771

Subsequently, in Williams v. Pennsylvania, the Court found that

the right of due process was violated when a judge on the Pennsylvania Supreme Court—who participated in case denying postconviction relief to a prisoner convicted of first-degree murder and

sentenced to death—had, in his former role as a district attorney,

given approval to seek the death penalty in the prisoner’s case.772

Relying on Caperton, which the Court viewed as having set forth

an “objective standard” that requires recusal when the likelihood

of bias on the part of the judge is “too high to be constitutionally

767 556 U.S. ___, No. 08–22, slip op. at 6 (citations omitted).

768 556 U.S. ___, No. 08–22, slip op. at 7, 9.

769 556 U.S. ___, No. 08–22, slip op. at 11 (citations omitted).

770 556 U.S. ___, No. 08–22, slip op. at 15.

771 556 U.S. ___, No. 08–22, slip op. at 14. Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, dissented, asserting that “a ‘probability of bias’ cannot be defined in any limited way,” “provides no guidance to judges and litigants

about when recusal will be constitutionally required,” and “will inevitably lead to

an increase in allegations that judges are biased, however groundless those charges

may be.” Slip. op. at 1 (Roberts, C.J., dissenting). The majority countered that “[t]he

facts now before us are extreme in any measure.” Slip op. at 17.

772 579 U.S. ___, No. 15–5040, slip op. at 1 (2016).

1964 AMENDMENT 14—RIGHTS GUARANTEED
tolerable,” 773 the Williams Court specifically held that there is an

impermissible risk of actual bias when a judge had previously had

a “significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.” 774 The Court based its holding, in part, on earlier cases which had found impermissible bias

occurs when the same person serves as both “accuser” and “adjudicator” in a case, which the Court viewed as having happened in

Williams.

775 It also reasoned that authorizing another person to seek

the death penalty represents “significant personal involvement” in

a case,776 and took the view that the involvement of multiple actors in a case over many years “only heightens”—rather than mitigates—the “need for objective rules preventing the operation of bias

that otherwise might be obscured.” 777 As a remedy, the case was

remanded for reevaluation by the reconstituted Pennsylvania Supreme Court, notwithstanding the fact that the judge in question

did not cast the deciding vote, as the Williams Court viewed the

judge’s participation in the multi-member panel’s deliberations as

sufficient to taint the public legitimacy of the underlying proceedings and constitute reversible error.778

(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.” 779 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 crossexamination. “This Court has been zealous to protect these rights

from erosion. It has spoken out not only in criminal cases, . . . but

773 Id. (internal quotations omitted).

774 Id. at 5–6.

775 Id. at 6 (citing In re Murchison, 349 U.S. 133, 136–37 (1955)). The Court

also noted that “[n]o attorney is more integral to the accusatory process than a prosecutor who participates in a major adversary decision.” Id. at 7.

776 Id. at 9. See also id. at 10 (noting that the judge in this case had highlighted the number of capital cases in which he participated when campaigning for

judicial office).

777 Id. at 8.

778 Id. at 12–13. Likewise, the Court rejected the argument that remanding the

case would not cure the underlying due process violation because the disqualified

judge’s views might still influence his former colleagues, as an “inability to guarantee complete relief for a constitutional violation . . . does not justify withholding a

remedy altogether.” Id. at 14.

779 Goldberg v. Kelly, 397 U.S. 254, 269 (1970). See also ICC v. Louisville & Nashville R.R., 227 U.S. 88, 93–94 (1913). Cf. § 7(c) of the Administrative Procedure Act,

5 U.S.C. § 556(d).

AMENDMENT 14—RIGHTS GUARANTEED 1965
also in all types of cases where administrative . . . actions were under scrutiny.” 780

(5) Discovery. The Court has never directly confronted this issue, but in one case it did observe in dictum that “where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to

prove the Government’s case must be disclosed to the individual so

that he has an opportunity to show that it is untrue.” 781 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.782 There appear to be no cases, however,

holding they must, and there is some authority that they cannot

absent congressional authorization.783

(6) Decision on the Record. Although this issue arises principally in the administrative law area,784 it applies generally. “[T]he

decisionmaker’s conclusion . . . must rest solely on the legal rules

and evidence adduced at the hearing. To demonstrate compliance

with this elementary requirement, the decisionmaker should state

the reasons for his determination and indicate the evidence he relied on, though his statement need not amount to a full opinion or

even formal findings of fact and conclusions of law.” 785

(7) Counsel. In Goldberg v. Kelly, the Court held that a government agency must permit a welfare recipient who has been denied

benefits to be represented by and assisted by counsel.786 In the years

since, the Court has struggled with whether civil litigants in court

and persons before agencies who could not afford retained counsel

should have counsel appointed and paid for, and the matter seems

far from settled. The Court has established a presumption that an

indigent does not have the right to appointed counsel unless his

780 Greene v. McElroy, 360 U.S. 474, 496–97 (1959). But see Richardson v. Perales,

402 U.S. 389 (1971) (where authors of documentary evidence are known to petitioner and he did not subpoena them, he may not complain that agency relied on

that evidence). Cf. Mathews v. Eldridge, 424 U.S. 319, 343–45 (1976).

781 Greene v. McElroy, 360 U.S. 474, 496 (1959), quoted with approval in Goldberg

v. Kelly, 397 U.S. 254, 270 (1970).

782 RECOMMENDATIONS AND REPORTS OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED

STATES 571 (1968–1970).

783 FMC v. Anglo-Canadian Shipping Co., 335 F.2d 255 (9th Cir. 1964).

784 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 R.R. v. Railroad Comm’n, 324 U.S. 548 (1945) (agency decision supported by evidence in record, its decision sustained, disregarding ex parte

evidence).

785 Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (citations omitted).

786 397 U.S. 254, 270–71 (1970).

1966 AMENDMENT 14—RIGHTS GUARANTEED
“physical liberty” is threatened.787 Moreover, that an indigent may

have a right to appointed counsel in some civil proceedings where

incarceration is threatened does not mean that counsel must be made

available in all such cases. Rather, the Court focuses on the circumstances in individual cases, and may hold that provision of counsel

is not required if the state provides appropriate alternative safeguards.788

Though the calculus may vary, cases not involving detention also

are determined on a case-by-case basis using a balancing standard.789

For instance, in a case involving a state proceeding to terminate the parental rights of an indigent without providing her counsel, the Court recognized the parent’s interest as “an extremely important one.” The Court, however, also noted the state’s strong interest

in protecting the welfare of children. Thus, as the interest in correct fact-finding was strong on both sides, the proceeding was relatively simple, no features were present raising a risk of criminal

liability, no expert witnesses were present, and no “specially troublesome” substantive or procedural issues had been raised, the litigant did not have a right to appointed counsel.790 In other due process cases involving parental rights, the Court has held that due

process requires special state attention to parental rights.791 Thus,

787 Lassiter v. Department of Social Services, 452 U.S. 18 (1981). The Court purported to draw this rule from Gagnon v. Scarpelli, 411 U.S. 778 (1973) (no per se

right to counsel in probation revocation proceedings). To introduce this presumption

into the balancing, however, appears to disregard the fact that the first factor of

Mathews v. Eldridge, 424 U.S. 319 (1976), upon which the Court (and dissent) relied, relates to the importance of the interest to the person claiming the right. Thus,

at least in this context, the value of the first Eldridge factor is diminished. The Court

noted, however, that the Mathews v. Eldridge standards were drafted in the context

of the generality of cases and were not intended for case-by-case application. Cf.

424 U.S. at 344 (1976).

788 Turner v. Rogers, 564 U.S. ___, No. 10–10, slip op. (2011). The Turner Court

denied an indigent defendant appointed counsel in a civil contempt proceeding to

enforce a child support order, even though the defendant faced incarceration unless

he showed an inability to pay the arrearages. The party opposing the defendant in

the case was not the state, but rather the unrepresented custodial parent, nor was

the case unusually complex. A five-Justice majority, though denying a right to counsel, nevertheless reversed the contempt order because it found that the procedures

followed remained inadequate.

789 452 U.S. at 31–32. The balancing decision is to be made initially by the trial

judge, subject to appellate review. Id. at 32

790 452 U.S. at 27–31. The decision was a five-to-four, with Justices Stewart,

White, Powell, and Rehnquist and Chief Justice Burger in the majority, and Justices Blackmun, Brennan, Marshall, and Stevens in dissent. Id. at 35, 59.

791 See, e.g., Little v. Streater, 452 U.S. 1 (1981) (indigent entitled to statefunded 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).

AMENDMENT 14—RIGHTS GUARANTEED 1967
it would appear likely that in other parental right cases, a right to

appointed counsel could be established.

The Procedure That Is Due Process

The Interests Protected: “Life, Liberty and Property”.—

The language of the Fourteenth Amendment requires the provision

of due process when an interest in one’s “life, liberty or property” is

threatened.792 Traditionally, the Court made this determination by

reference to the common understanding of these terms, as embodied in the development of the common law.793 In the 1960s, however, the Court began a rapid expansion of the “liberty” and “property” aspects of the clause to include such non-traditional concepts

as conditional property rights and statutory entitlements. Since then,

the Court has followed an inconsistent path of expanding and contracting the breadth of these protected interests. The “life” interest, on the other hand, although often important in criminal cases,

has found little application in the civil context.

The Property Interest.—The expansion of the concept of “property rights” beyond its common law roots reflected a recognition by

the Court that certain interests that fall short of traditional property rights are nonetheless important parts of people’s economic wellbeing. For instance, where household goods were sold under an installment contract and title was retained by the seller, the possessory

interest of the buyer was deemed sufficiently important to require

procedural due process before repossession could occur.794 In addition, the loss of the use of garnished wages between the time of

garnishment and final resolution of the underlying suit was deemed

a sufficient property interest to require some form of determination

792 Morrissey v. Brewer, 408 U.S. 471, 481 (1982). “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are

implicated, the right to some kind of prior hearing is paramount. But the range of

interests protected by procedural due process is not infinite.” Board of Regents v.

Roth, 408 U.S. 564, 569–71 (1972). Developments under the Fifth Amendment’s Due

Process Clause have been interchangeable. Cf. Arnett v. Kennedy, 416 U.S. 134 (1974).

793 For instance, at common law, one’s right of life existed independently of any

formal guarantee of it and could be taken away only by the state pursuant to the

formal processes of law, and only for offenses deemed by a legislative body to be

particularly heinous. One’s liberty, generally expressed as one’s freedom from bodily

restraint, was a natural right to be forfeited only pursuant to law and strict formal

procedures. One’s ownership of lands, chattels, and other properties, to be sure, was

highly dependent upon legal protections of rights commonly associated with that ownership, but it was a concept universally understood in Anglo-American countries.

794 Fuentes v. Shevin, 407 U.S. 67 (1972) (invalidating replevin statutes which

authorized the authorities to seize goods simply upon the filing of an ex parte application and the posting of bond).

1968 AMENDMENT 14—RIGHTS GUARANTEED
that the garnisher was likely to prevail.795 Furthermore, the continued possession of a driver’s license, which may be essential to one’s

livelihood, is protected; thus, a license should not be suspended after an accident for failure to post a security for the amount of damages claimed by an injured party without affording the driver an

opportunity to raise the issue of liability.796

A more fundamental shift in the concept of property occurred

with recognition of society’s growing economic reliance on government benefits, employment, and contracts,797 and with the decline

of the “right-privilege” principle. This principle, discussed previously in the First Amendment context,798 was pithily summarized

by Justice Holmes in dismissing a suit by a policeman protesting

being fired from his job: “The petitioner may have a constitutional

right to talk politics, but he has no constitutional right to be a policeman.” 799 Under this theory, a finding that a litigant had no “vested

property interest” in government employment,800 or that some form

of public assistance was “only” a privilege,801 meant that no procedural due process was required before depriving a person of that

interest.802 The reasoning was that, if a government was under no

obligation to provide something, it could choose to provide it subject to whatever conditions or procedures it found appropriate.

The conceptual underpinnings of this position, however, were

always in conflict with a line of cases holding that the government

could not require the diminution of constitutional rights as a condition for receiving benefits. This line of thought, referred to as the

“unconstitutional conditions” doctrine, held that, “even though a 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.” 803

795 Sniadach v. Family Finance Corp., 395 U.S. 337, 342 (1969) (Harlan, J., concurring).

796 Bell v. Burson, 402 U.S. 535 (1971). Compare Dixon v. Love, 431 U.S. 105

(1977), with Mackey v. Montrym, 443 U.S. 1 (1979). But see American Mfrs. Mut.

Ins. Co. v. Sullivan, 526 U.S. 40 (1999) (no liberty interest in worker’s compensation

claim where reasonableness and necessity of particular treatment had not yet been

resolved).

797 See LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 685 (2d. ed) (1988).

798 Tribe, supra, at 1084–90.

799 McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E.2d 517, 522

(1892).

800 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).

801 Flemming v. Nestor, 363 U.S. 603 (1960).

802 Barsky v. Board of Regents, 347 U.S. 442 (1954).

803 Perry v. Sindermann, 408 U.S. 593, 597 (1972). See Speiser v. Randall, 357

U.S. 513 (1958).

AMENDMENT 14—RIGHTS GUARANTEED 1969
Nonetheless, the two doctrines coexisted in an unstable relationship until the 1960s, when the right-privilege distinction started to

be largely disregarded.804

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 805 against erroneous governmental deprivation of something

it had within its discretion bestowed. Previously, the Court had limited due process protections to constitutional rights, traditional rights,

common law rights and “natural rights.” Now, under a new “positivist” approach, a protected property or liberty interest might be found

based on any positive governmental statute or governmental practice that gave rise to a legitimate expectation. Indeed, for a time it

appeared that this positivist conception of protected rights was going to displace the traditional sources.

As noted previously, the advent of this new doctrine can be seen

in Goldberg v. Kelly,

806 in which the Court held that, because termination of welfare assistance may deprive an eligible recipient of

the means of livelihood, the government must provide a pretermination evidentiary hearing at which an initial determination

of the validity of the dispensing agency’s grounds for termination

may be made. In order to reach this conclusion, the Court found

that such benefits “are a matter of statutory entitlement for persons qualified to receive them.” 807 Thus, where the loss or reduction of a benefit or privilege was conditioned upon specified grounds,

it was found that the recipient had a property interest entitling him

to proper procedure before termination or revocation.

At first, the Court’s emphasis on the importance of the statutory rights to the claimant led some lower courts to apply the Due

Process Clause by assessing the weights of the interests involved

and the harm done to one who lost what he was claiming. This ap804 See William Van Alstyne, The Demise of the Right-Privilege Distinction in

Constitutional Law, 81 HARV. L. REV. 1439 (1968). Much of the old fight had to do

with imposition of conditions on admitting corporations into a state. Cf. Western &

Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656–68 (1981) (reviewing the cases). The right-privilege distinction is not, however, totally moribund.

See Buckley v. Valeo, 424 U.S. 1, 108–09 (1976) (sustaining as qualification for public financing of campaign agreement to abide by expenditure limitations otherwise

unconstitutional); Wyman v. James, 400 U.S. 309 (1971).

805 This means that Congress or a state legislature could still simply take away

part or all of the benefit. Richardson v. Belcher, 404 U.S. 78 (1971); United States

Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980); Logan v. Zimmerman

Brush Co., 455 U.S. 422, 432–33 (1982).

806 397 U.S. 254 (1970).

807 397 U.S. at 261–62. See also Mathews v. Eldridge, 424 U.S. 319 (1976) (Social Security benefits).

1970 AMENDMENT 14—RIGHTS GUARANTEED
proach, 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.” 808 To have a property interest

in the constitutional sense, the Court held, it was not enough that

one has an abstract need or desire for a benefit or a unilateral expectation. He must rather “have a legitimate claim of entitlement”

to the benefit. “Property interests, of course, are not created by the

Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those

benefits.” 809

Consequently, in Board of Regents v. Roth, the Court held that

the refusal to renew a teacher’s contract upon expiration of his oneyear term implicated no due process values because there was nothing in the public university’s contract, regulations, or policies that

“created any legitimate claim” to reemployment.810 By contrast, in

Perry v. Sindermann,

811 a professor employed for several years at a

public college was found to have a protected interest, even though

his employment contract had no tenure provision and there was no

statutory assurance of it.812 The “existing rules or understandings”

808 Board of Regents v. Roth, 408 U.S. 564, 569–71 (1972).

809 408 U.S. at 577. Although property interests often arise by statute, the Court

has also recognized interests established by state case law. Thus, where state court

holdings required that private utilities terminate service only for cause (such as nonpayment of charges), then a utility is required to follow procedures to resolve disputes about payment or the accuracy of charges prior to terminating service. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978).

810 436 U.S. at 576–78. The Court also held that no liberty interest was implicated, because in declining to rehire Roth the state had not made any charges against

him or taken any actions that would damage his reputation or stigmatize him. 436

at 572–75. For an instance of protection accorded a claimant on the basis of such an

action, see Codd v. Vegler. See also Bishop v. Wood, 426 U.S. 341, 347–50 (1976);

Vitek v. Jones, 445 U.S. 480, 491–94 (1980); Board of Curators v. Horowitz, 435 U.S.

78, 82–84 (1978).

811 408 U.S. 593 (1972). See Leis v. Flynt, 439 U.S. 438 (1979) (finding no practice or mutually explicit understanding creating interest).

812 408 U.S. at 601–03 (1972). In contrast, a statutory assurance was found in

Arnett v. Kennedy, 416 U.S. 134 (1974), where the civil service laws and regulations allowed suspension or termination “only for such cause as would promote the

efficiency of the service.” 416 U.S. at 140. On the other hand, a policeman who was

a “permanent employee” under an ordinance which appeared to afford him a continuing position subject to conditions subsequent was held not to be protected by the

Due Process Clause because the federal district court interpreted the ordinance as

providing only employment at the will and pleasure of the city, an interpretation

that the Supreme Court chose not to disturb. Bishop v. Wood, 426 U.S. 341 (1976).

“On its face,” the Court noted, “the ordinance on which [claimant relied] may fairly

be read as conferring” both “a property interest in employment . . . [and] an enforceable expectation of continued public employment.” 426 U.S. at 344–45 (1976). The

AMENDMENT 14—RIGHTS GUARANTEED 1971
were deemed to have the characteristics of tenure, and thus provided a legitimate expectation independent of any contract provision.813

The Court has also found “legitimate entitlements” in a variety

of other situations besides employment. In Goss v. Lopez,

814 an Ohio

statute provided for both free education to all residents between five

and 21 years of age and compulsory school attendance; thus, the

state was deemed to have obligated itself to accord students some

due process hearing rights prior to suspending them, even for such

a short period as ten days. “Having chosen to extend the right to

an education to people of appellees’ class generally, Ohio may not

withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred.” 815 The Court is highly deferential, however, to school dismissal decisions based on academic grounds.816

The further one gets from traditional precepts of property, the

more difficult it is to establish a due process claim based on entitlements. In Town of Castle Rock v. Gonzales,

817 the Court considered

whether police officers violated a constitutionally protected property interest by failing to enforce a restraining order obtained by

an estranged wife against her husband, despite having probable cause

to believe the order had been violated. While noting statutory language that required that officers either use “every reasonable means

to enforce [the] restraining order” or “seek a warrant for the arrest

of the restrained person,” the Court resisted equating this language with the creation of an enforceable right, noting a longstanding tradition of police discretion coexisting with apparently mandistrict court’s decision had been affirmed by an equally divided appeals court and

the Supreme Court deferred to the presumed greater expertise of the lower court

judges in reading the ordinance. 426 U.S. at 345 (1976).

813 408 U.S. at 601.

814 419 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). See

also 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).

815 Goss v. Lopez, 419 U.S. at 574. See also Barry v. Barchi, 443 U.S. 55 (1979)

(horse trainer’s license); O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980)

(statutory entitlement of nursing home residents protecting them in the enjoyment

of assistance and care).

816 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.

817 545 U.S. 748 (2005).

1972 AMENDMENT 14—RIGHTS GUARANTEED
datory arrest statutes.818 Finally, the Court even questioned whether

finding that the statute contained mandatory language would have

created a property right, as the wife, with no criminal enforcement

authority herself, was merely an indirect recipient of the benefits

of the governmental enforcement scheme.819

In Arnett v. Kennedy,

820 an incipient counter-revolution to the

expansion of due process was rebuffed, at least with respect to entitlements. Three Justices sought to qualify the principle laid down

in the entitlement cases and to restore in effect much of the rightprivilege distinction, albeit in a new formulation. The case involved a federal law that provided that employees could not be discharged except for cause, and the Justices acknowledged that due

process rights could be created through statutory grants of entitlements. The Justices, however, observed that the same law specifically withheld the procedural protections now being sought by the

employees. Because “the property interest which appellee had in his

employment was itself conditioned by the procedural limitations which

had accompanied the grant of that interest,” 821 the employee would

have to “take the bitter with the sweet.” 822 Thus, Congress (and by

analogy state legislatures) could qualify the conferral of an interest

by limiting the process that might otherwise be required.

But the other six Justices, although disagreeing among themselves in other respects, rejected this attempt 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 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.” 823 Yet, in Bishop v. Wood,

824 the Court accepted a district

court’s finding that a policeman held his position “at will” despite

818 545 U.S. at 759. The Court also noted that the law did not specify the precise means of enforcement required; nor did it guarantee that, if a warrant were

sought, it would be issued. Such indeterminancy is not the “hallmark of a duty that

is mandatory.” Id. at 763.

819 545 U.S. at 764–65.

820 416 U.S. 134 (1974).

821 416 U.S. at 155 (Justices Rehnquist and Stewart and Chief Justice Burger).

822 416 U.S. at 154.

823 416 U.S. 167 (Justices Powell and Blackmun concurring). See 416 U.S. at

177 (Justice White concurring and dissenting), 203 (Justice Douglas dissenting), 206

(Justices Marshall, Douglas, and Brennan dissenting).

824 426 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.

AMENDMENT 14—RIGHTS GUARANTEED 1973
language setting forth conditions for discharge. Although the majority opinion was couched in terms of statutory construction, the majority appeared to come close to adopting the three-Justice Arnett

position, so much so that the dissenters accused the majority of having repudiated the majority position of the six Justices in Arnett.

And, in Goss v. Lopez,

825 Justice Powell, writing in dissent but using language quite similar to that of Justice Rehnquist in Arnett,

seemed to indicate that the right to public education could be qualified by a statute authorizing a school principal to impose a ten-day

suspension.826

Subsequently, however, the Court held squarely 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 virtually any state-created property interest at will.827 A striking application of this analysis is found

in Logan v. Zimmerman Brush Co.,

828 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 noted that various older cases had clearly established that

causes of action were property, and, in any event, Logan’s claim was

an entitlement grounded in state law and thus could only be removed “for cause.” This property interest existed independently of

the 120-day time period and could not simply be taken away by

agency action or inaction.829

The Liberty Interest.—With respect to liberty interests, the Court

has followed a similarly meandering path. Although the traditional

concept of liberty was freedom from physical restraint, the Court

has expanded the concept to include various other protected interests, some statutorily created and some not.830 Thus, in Ingraham

825 419 U.S. 565, 573–74 (1975). See id. at 584, 586–87 (Justice Powell dissenting).

826 419 U.S. at 584, 586–87 (Justice Powell dissenting).

827 Vitek v. Jones, 445 U.S. 480, 491 (1980). See also Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532 (1985).

828 455 U.S. 422 (1982).

829 455 U.S. at 428–33 A different majority of the Court also found an equal

protection denial. 455 U.S. at 438.

830 These procedural liberty interests should not, however, be confused with substantive liberty interests, which, if not outweighed by a sufficient governmental interest, may not be intruded upon regardless of the process followed. See “Fundamental Rights (Noneconomic Due Process),” supra.

1974 AMENDMENT 14—RIGHTS GUARANTEED
v. Wright,

831 the Court unanimously agreed that school children had

a liberty interest in freedom from wrongfully or excessively administered corporal punishment, whether or not such interest was protected by statute. “The liberty preserved from deprivation without

due process included the right ‘generally to enjoy those privileges

long recognized at common law as essential to the orderly pursuit

of happiness by free men.’ . . . Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for,

unjustified intrusions on personal security.” 832

The Court also appeared to have expanded the notion of “liberty” to include the right to be free of official stigmatization, and

found that such threatened stigmatization could in and of itself require due process.833 Thus, in Wisconsin v. Constantineau,

834 the Court

invalidated a statutory scheme in which persons could be labeled

“excessive drinkers,” without any opportunity for a hearing and rebuttal, and could then be barred from places where alcohol was served.

The Court, without discussing the source of the entitlement, noted

that the governmental action impugned the individual’s reputation, honor, and integrity.835

But, in Paul v. Davis,

836 the Court appeared to retreat from recognizing damage to reputation alone, holding instead that the liberty interest extended only to those situations where loss of one’s

reputation also resulted in loss of a statutory entitlement. In Davis, the police had included plaintiff’s photograph and name on a

list of “active shoplifters” circulated to merchants without an opportunity for notice or hearing. But the Court held that “Kentucky law

does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners’ actions. Rather, his interest in reputation is simply one of a

831 430 U.S. 651 (1977).

832 430 U.S. at 673. The family-related liberties discussed under substantive due

process, as well as the associational and privacy ones, no doubt provide a fertile

source of liberty interests for procedural protection. See Armstrong v. Manzo, 380

U.S. 545 (1965) (natural father, with visitation rights, must be given notice and opportunity to be heard with respect to impending adoption proceedings); Stanley v.

Illinois, 405 U.S. 645 (1972) (unwed father could not simply be presumed unfit to

have custody of his children because his interest in his children warrants deference

and protection). See also Smith v. Organization of Foster Families, 431 U.S. 816

(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).

833 Board of Regents v. Roth, 408 U.S. 564, 569–70 (1972); Goss v. Lopez, 419

U.S. 565 (1975).

834 400 U.S. 433 (1971).

835 But see Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003)

(posting of accurate information regarding sex offenders on state Internet website

does not violate due process as the site does not purport to label the offenders as

presently dangerous).

836 424 U.S. 693 (1976).

AMENDMENT 14—RIGHTS GUARANTEED 1975
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.” 837 Thus, unless the government’s official defamation has a specific negative effect on an entitlement, such as the

denial to “excessive drinkers” of the right to obtain alcohol that occurred in Constantineau, there is no protected liberty interest that

would require due process.

A number of liberty interest cases that involve statutorily created entitlements involve prisoner rights, and are dealt with more

extensively in the section on criminal due process. However, they

are worth noting here. In Meachum v. Fano,

838 the Court held that

a state prisoner was not entitled to a fact-finding hearing when he

was 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 was satisfied by the initial valid conviction, which had deprived him of liberty, and (2) no state law guaranteed him the right to remain in the prison to which he was initially assigned, subject to transfer for cause of some sort. As a prisoner

could be transferred for any reason or for no reason under state

law, the decision of prison officials was not dependent upon any state

of facts, and no hearing was required.

In Vitek v. Jones,

839 by contrast, a state statute permitted transfer of a prisoner to a state mental hospital for treatment, but the

transfer could be effectuated only upon a finding, by a designated

physician or psychologist, that the prisoner “suffers from a mental

disease or defect” and “cannot be given treatment in that facility.”

Because the transfer was conditioned upon a “cause,” the establishment of the facts necessary to show the cause had to be done through

fair procedures. Interestingly, however, the Vitek Court also held that

the prisoner had a “residuum of liberty” in being free from the different confinement and from the stigma of involuntary commitment for mental disease that the Due Process Clause protected. Thus,

the Court has recognized, in this case and in the cases involving

837 Here the Court, 424 U.S. at 701–10, distinguished Constantineau as being a

“reputation-plus” case. That is, it involved not only the stigmatizing of one posted

but it also “deprived the individual of a right previously held under state law—the

right to purchase or obtain liquor in common with the rest of the citizenry.” 424

U.S. at 708. How the state law positively did this the Court did not explain. But, of

course, the reputation-plus concept is now well-settled. See discussion below. See also

Board of Regents v. Roth, 408 U.S. 564, 573 (1972); Siegert v. Gilley, 500 U.S. 226

(1991); Paul v. Davis, 424 U.S. 693, 711–12 (1976). In a later 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).

838 427 U.S. 215 (1976). See also Montanye v. Haymes, 427 U.S. 236 (1976).

839 445 U.S. 480 (1980).

1976 AMENDMENT 14—RIGHTS GUARANTEED
revocation of parole or probation,840 a liberty interest that is separate from a statutory entitlement and that can be taken away only

through proper procedures.

But, with respect to the possibility of parole or commutation or

otherwise more rapid release, no matter how much the expectancy

matters to a prisoner, in the absence of some form of positive entitlement, the prisoner may be turned down without observance of

procedures.841 Summarizing its prior holdings, the Court recently

concluded that two requirements must be present before a liberty

interest is created in the prison context: the statute or regulation

must contain “substantive predicates” limiting the exercise of discretion, and there must be explicit “mandatory language” requiring

a particular outcome if substantive predicates are found.842 In an

even more recent case, the Court limited the application of this test

to those circumstances where the restraint on freedom imposed by

the state creates an “atypical and significant hardship.” 843

Proceedings in Which Procedural Due Process Need Not

Be Observed.—Although due notice and a reasonable opportunity

to be heard are two fundamental protections found in almost all

systems of law established by civilized countries,844 there are certain proceedings in which the enjoyment of these two conditions has

not been deemed to be constitutionally necessary. For instance, persons adversely affected by a law cannot challenge its validity on

the ground that the legislative body that enacted it gave no notice

of proposed legislation, held no hearings at which the person could

have presented his arguments, and gave no consideration to particular points of view. “Where a rule of conduct applies to more than a

few people it is impracticable that everyone should have a direct

voice in its adoption. The Constitution does not require all public

840 Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778

(1973).

841 Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Connecticut Bd.

of Pardons v. Dumschat, 452 U.S. 458 (1981); Ohio Adult Parole Auth. v. Woodard,

523 U.S. 272 (1998); Jago v. Van Curen, 454 U.S. 14 (1981). See also Wolff v. McDonnell, 418 U.S. 539 (1974) (due process applies to forfeiture of good-time credits and

other positivist granted privileges of prisoners).

842 Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 459–63 (1989) (prison

regulations listing categories of visitors who may be excluded, but not creating a

right to have a visitor admitted, contain “substantive predicates” but lack mandatory language).

843 Sandin v. Conner, 515 U.S. 472, 484 (1995) (30-day solitary confinement not

atypical “in relation to the ordinary incidents of prison life”); Wilkinson v. Austin,

545 U.S. 209, 224 (2005) (assignment to SuperMax prison, with attendant loss of

parole eligibility and with only annual status review, constitutes an “atypical and

significant hardship”).

844 Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S.

261, 265 (1912).

AMENDMENT 14—RIGHTS GUARANTEED 1977
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.” 845

Similarly, when an administrative agency engages in a legislative function, as, for example, when it drafts regulations of general

application affecting an unknown number of persons, it need not

afford a hearing prior to promulgation.846 On the other hand, if a

regulation, sometimes denominated an “order,” is of limited application, that is, it affects an identifiable class of persons, the question

whether notice and hearing is required and, if so, whether it must

precede such action, becomes a matter of greater urgency and must

be determined by evaluating the various factors discussed below.847

One such factor is whether agency action is subject to later judicial scrutiny.848 In one of the initial decisions construing the Due

Process Clause of the Fifth Amendment, the Court upheld the authority of the Secretary of the Treasury, acting pursuant to statute,

to obtain money from a collector of customs alleged to be in arrears. The Treasury simply issued a distress warrant and seized

the collector’s property, affording him no opportunity for a hearing,

and requiring him to sue for recovery of his property. While acknowledging that history and settled practice required proceedings in which

pleas, answers, and trials were requisite before property could be

taken, the Court observed that the distress collection of debts due

the crown had been the exception to the rule in England and was

of long usage in the United States, and was thus sustainable.849

In more modern times, the Court upheld a procedure under which

a state banking superintendent, after having taken over a closed

bank and issuing notices to stockholders of their assessment, could

845 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). Cf. Logan v. Zimmerman

Brush Co., 445 U.S. 422, 432–33 (1982).

846 United States v. Florida East Coast Ry., 410 U.S. 224 (1973).

847 410 U.S. at 245 (distinguishing between rule-making, at which legislative

facts are in issue, and adjudication, at which adjudicative facts are at issue, requiring a hearing in latter proceedings but not in the former). See Londoner v. City of

Denver, 210 U.S. 373 (1908).

848 “It is not an indispensable requirement of due process that every procedure

affecting the ownership or disposition of property be exclusively by judicial proceeding. Statutory proceedings affecting property rights which, by later resort to the courts,

secures to adverse parties an opportunity to be heard, suitable to the occasion, do

not deny due process.” Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 246–47 (1944).

849 Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272

(1856).

1978 AMENDMENT 14—RIGHTS GUARANTEED
issue execution for the amounts due, subject to the right of each

stockholder to contest his liability for such an assessment by an

affidavit of illegality. The fact that the execution was issued in the

first instance by a governmental officer and not from a court, followed by personal notice and a right to take the case into court,

was seen as unobjectionable.850

It is a violation of due process for a state to enforce a judgment

against a party to a proceeding without having given him an opportunity to be heard sometime before final judgment is entered.851 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 852 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.853 On the other hand,

where a state appellate court reversed a trial court and entered a

final judgment for the defendant, a plaintiff who had never had an

opportunity to introduce evidence in rebuttal to certain testimony

which the trial court deemed immaterial but which the appellate

court considered material was held to have been deprived of his rights

without due process of law.854

When Process Is Due.—The requirements of due process, as

has been noted, depend upon the nature of the interest at stake,

while the form of due process required is determined by the weight

of that interest balanced against the opposing interests.855 The cur850 Coffin Brothers & Co. v. Bennett, 277 U.S. 29 (1928).

851 Postal Telegraph Cable Co. v. Newport, 247 U.S. 464, 476 (1918); Baker v.

Baker, Eccles & Co., 242 U.S. 294, 403 (1917); Louisville & Nashville R.R. v. Schmidt,

177 U.S. 230, 236 (1900).

852 Lindsey v. Normet, 405 U.S. 56, 65–69 (1972). However, if one would suffer

too severe an injury between the doing and the undoing, he may avoid the alternative means. Stanley v. Illinois, 405 U.S. 645, 647 (1972).

853 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).

854 Saunders v. Shaw, 244 U.S. 317 (1917).

855 “The extent to which procedural due process must be afforded the recipient

is influenced by the extent to which he may be ‘condemned to suffer grievous loss,’

. . . and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication.” Goldberg v. Kelly, 397

U.S. 254, 262–63 (1970), (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341

AMENDMENT 14—RIGHTS GUARANTEED 1979
rently prevailing standard is that formulated in Mathews v. Eldridge,

856

which concerned termination of Social Security benefits. “Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will

be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and probable

value, if any, of additional or substitute procedural safeguards; and,

finally, the Government’s interest, including the function involved

and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.”

The termination of welfare benefits in Goldberg v. Kelly,

857 which

could have resulted in a “devastating” loss of food and shelter, had

required a pre-deprivation hearing. The termination of Social Security benefits at issue in Mathews would require less protection, however, because those benefits are not based on financial need and a

terminated recipient would be able to apply for welfare if need be.

Moreover, the determination of ineligibility for Social Security benefits more often turns upon routine and uncomplicated evaluations

of data, reducing the likelihood of error, a likelihood found significant in Goldberg. Finally, the administrative burden and other societal costs involved in giving Social Security recipients a pretermination hearing would be high. Therefore, a post-termination

hearing, with full retroactive restoration of benefits, if the claimant

prevails, was found satisfactory.858

Application of the Mathews standard and other considerations

brought some noteworthy changes to the process accorded debtors

and installment buyers. Earlier cases, which had focused upon the

interests of the holders of the property in not being unjustly deprived of the goods and funds in their possession, leaned toward

requiring pre-deprivation hearings. Newer cases, however, look to

the interests of creditors as well. “The reality is that both seller

and buyer had current, real interests in the property, and the definition of property rights is a matter of state law. Resolution of the

due process question must take account not only of the interests of

the buyer of the property but those of the seller as well.” 859

U.S. 123, 168 (1951) (Justice Frankfurter concurring)). “The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 894–95

(1961).

856 424 U.S. 319, 335 (1976).

857 397 U.S. 254, 264 (1970).

858 Mathews v. Eldridge, 424 U.S. 319, 339–49 (1976).

859 Mitchell v. W.T. Grant Co., 416 U.S. 600, 604 (1975). See also id. at 623 (Justice Powell concurring), 629 (Justices Stewart, Douglas, and Marshall dissenting).

Justice White, who wrote Mitchell and included the balancing language in his dis1980 AMENDMENT 14—RIGHTS GUARANTEED
Thus, Sniadach v. Family Finance Corp.,

860 which mandated predeprivation hearings before wages may be garnished, has apparently been limited to instances when wages, and perhaps certain

other basic necessities, are in issue and the consequences of deprivation would be severe.861 Fuentes v. Shevin,

862 which struck down

a replevin statute that authorized the seizure of property (here household goods purchased on an installment contract) simply upon the

filing of an ex parte application and the posting of bond, has been

limited,863 so that an appropriately structured ex parte judicial determination before seizure is sufficient to satisfy due process.864 Thus,

laws authorizing sequestration, garnishment, or other seizure of property of an alleged defaulting debtor need only require that (1) the

creditor furnish adequate security to protect the debtor’s interest,

(2) the creditor make a specific factual showing before a neutral officer or magistrate, not a clerk or other such functionary, of probable cause to believe that he is entitled to the relief requested, and

(3) an opportunity be assured for an adversary hearing promptly

sent 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.

860 395 U.S. 337 (1969).

861 North Georgia Finishing v. Di-Chem, 419 U.S. 601, 611 n.2 (1975) (Justice

Powell concurring). The majority opinion draws no such express distinction, see id.

at 605–06, rather emphasizing that Sniadach-Fuentes do require observance of some

due process procedural guarantees. But see Mitchell v. W.T. Grant Co., 416 U.S. 600,

614 (1974) (opinion of Court by Justice White emphasizing the wages aspect of the

earlier case).

862 407 U.S. (1972).

863 Fuentes was an extension of the Sniadach principle to all “significant property interests” and thus mandated pre-deprivation hearings. Fuentes was a decision

of uncertain viability from the beginning, inasmuch as it was four-to-three; argument had been heard prior to the date Justices Powell and Rehnquist joined the

Court, hence neither participated in the decision. See Di-Chem, 419 U.S. at 616–19

(Justice Blackmun dissenting); Mitchell, 416 U.S. at 635–36 (1974) (Justice Stewart

dissenting).

864 Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); North Georgia Finishing v.

Di-Chem, 419 U.S. 601 (1975). More recently, the Court has applied a variant of the

Mathews v. Eldridge formula in holding that Connecticut’s prejudgment attachment

statute, which “fail[ed] to provide a preattachment hearing without at least requiring a showing of some exigent circumstance,” operated to deny equal protection. Connecticut v. Doehr, 501 U.S. 1, 18 (1991). “[T]he relevant inquiry requires, as in Mathews,

first, consideration of the private interest that will be affected by the prejudgment

measure; second, an examination of the risk of erroneous deprivation through the

procedures under attack and the probable value of additional or alternative safeguards; and third, in contrast to Mathews, principal attention to the interest of the

party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the

added burden of providing greater protections.” 501 U.S. at 11.

AMENDMENT 14—RIGHTS GUARANTEED 1981
after seizure to determine the merits of the controversy, with the

burden of proof on the creditor.865

Similarly, applying the Mathews v. Eldridge standard in the context of government employment, the Court has held, albeit by a combination of divergent opinions, that the interest of the employee in

retaining his job, the governmental interest in the expeditious removal of unsatisfactory employees, the avoidance of administrative

burdens, and the risk of an erroneous termination combine to require the provision of some minimum pre-termination notice and

opportunity to respond, followed by a full post-termination hearing,

complete with all the procedures normally accorded and back pay

if the employee is successful.866 Where the adverse action is less

than termination of employment, the governmental interest is significant, and where reasonable grounds for such action have been

established separately, then a prompt hearing held after the adverse action may be sufficient.867 In other cases, hearings with even

minimum procedures may be dispensed with when what is to be

established is so pro forma or routine that the likelihood of error is

very small.868 In a case dealing with negligent state failure to observe a procedural deadline, the Court held that the claimant was

865 Mitchell v. W.T. Grant Co., 416 U.S. at 615–18 (1974) and at 623 (Justice

Powell concurring). See also Arnett v. Kennedy, 416 U.S. 134, 188 (1974) (Justice

White concurring in part and dissenting in part). Efforts to litigate challenges to

seizures in actions involving two private parties may be thwarted by findings of “no

state action,” but there often is sufficient participation by state officials in transferring possession of property to constitute state action and implicate due process. Compare Flagg Bros. 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).

866 Arnett v. Kennedy, 416 U.S. 134, 170–71 (1974) (Justice Powell concurring),

and 416 U.S. at 195–96 (Justice White concurring in part and dissenting in part);

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (discharge of state government employee). In Barry v. Barchi, 443 U.S. 55 (1979), the Court held that the

state interest in assuring the integrity of horse racing carried on under its auspices

justified an interim suspension without a hearing once it established the existence

of certain facts, provided that a prompt judicial or administrative hearing would follow suspension at which the issues could be determined was assured. See also FDIC

v. Mallen, 486 U.S. 230 (1988) (strong public interest in the integrity of the banking

industry justifies suspension of indicted bank official with no pre-suspension hearing, and with 90-day delay before decision resulting from post-suspension hearing).

867 Gilbert v. Homar, 520 U.S. 924 (1997) (no hearing required prior to suspension without pay of tenured police officer arrested and charged with a felony).

868 E.g., Dixon v. Love, 431 U.S. 105 (1977) (when suspension of driver’s license

is automatic upon conviction of a certain number of offenses, no hearing is required

because there can be no dispute about facts).

1982 AMENDMENT 14—RIGHTS GUARANTEED
entitled to a hearing with the agency to pass upon the merits of

his claim prior to dismissal of his action.869

In Brock v. Roadway Express, Inc.,

870 a Court plurality applied

a similar analysis to governmental regulation of private employment, determining that an employer may be ordered by an agency

to reinstate a “whistle-blower” employee without an opportunity for

a full evidentiary hearing, but that the employer is entitled to be

informed of the substance of the employee’s charges, and to have

an opportunity for informal rebuttal. The principal difference with

the Mathews v. Eldridge test was that here the Court acknowledged two conflicting private interests to weigh in the equation: that

of the employer “in controlling the makeup of its workforce” and

that of the employee in not being discharged for whistleblowing.

Whether the case signals a shift away from evidentiary hearing requirements in the context of regulatory adjudication will depend on

future developments.871

A delay in retrieving money paid to the government is unlikely

to rise to the level of a violation of due process. In City of Los Angeles v. David,

872 a citizen paid a $134.50 impoundment fee to retrieve an automobile that had been towed by the city. When he subsequently sought to challenge the imposition of this impoundment

fee, he was unable to obtain a hearing until 27 days after his car

had been towed. The Court held that the delay was reasonable, as

the private interest affected—the temporary loss of the use of the

money—could be compensated by the addition of an interest payment to any refund of the fee. Further factors considered were that

a 30-day delay was unlikely to create a risk of significant factual

errors, and that shortening the delay significantly would be administratively burdensome for the city.

In another respect, the balancing standard of Mathews has resulted in states’ having wider flexibility in determining what process is required. For instance, in an alteration of previously existing law, no hearing is required if a state affords the claimant an

adequate alternative remedy, such as a judicial action for damages

869 Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).

870 481 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.

871 For analysis of the case’s implications, see Rakoff, Brock v. Roadway Express, Inc., and the New Law of Regulatory Due Process, 1987 SUP. CT. REV. 157.

872 538 U.S. 715 (2003).

AMENDMENT 14—RIGHTS GUARANTEED 1983
or breach of contract.873 Thus, the Court, in passing on the infliction of corporal punishment in the public schools, held that the existence of common-law tort remedies for wrongful or excessive administration of punishment, plus the context in which the punishment

was administered (i.e., the ability of the teacher to observe directly

the infraction in question, the openness of the school environment,

the visibility of the confrontation to other students and faculty, and

the likelihood of parental reaction to unreasonableness in punishment), made reasonably assured the probability that a child would

not be punished without cause or excessively.874 The Court did not,

however, inquire about the availability of judicial remedies for such

violations in the state in which the case arose.875

The Court has required greater protection from property deprivations resulting from operation of established state procedures than

from those resulting from random and unauthorized acts of state

employees,876 and presumably this distinction still holds. Thus, the

Court has held that post-deprivation procedures would not satisfy

due process if it is “the state system itself that destroys a complainant’s property interest.” 877 Although the Court briefly entertained

the theory that a negligent (i.e., non-willful) action by a state official was sufficient to invoke due process, and that a postdeprivation hearing regarding such loss was required,878 the Court

873 See, e.g., Lujan v. G & G Fire Sprinklers, Inc., 523 U.S. 189 (2001) (breach

of contract suit against state contractor who withheld payment to subcontractor based

on state agency determination of noncompliance with Labor Code sufficient for due

process purposes).

874 Ingraham v. Wright, 430 U.S. 651, 680–82 (1977).

875 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.

876 Logan v. Zimmerman Brush Co., 455 U.S. at 435–36 (1982). The Court emphasized that a post-deprivation hearing regarding harm inflicted by a state procedure would be inadequate. “That is particularly true where, as here, the State’s only

post-termination process comes in the form of an independent tort action. Seeking

redress through a tort suit is apt to be a lengthy and speculative process, which in

a situation such as this one will never make the complainant entirely whole.” 455

U.S. 422, 436–37.

877 455 U.S. at 436.

878 More expressly adopting the tort remedy theory, the Court in Parratt v. Taylor, 451 U.S. 527 (1981), held that the loss of a prisoner’s mail-ordered goods through

the negligence of prison officials constituted a deprivation of property, but that the

state’s post-deprivation tort-claims procedure afforded adequate due process. When

a state officer or employee acts negligently, the Court recognized, there is no way

that the state can provide a pre-termination hearing; the real question, therefore, is

what kind of post-deprivation hearing is sufficient. When the action complained of

is the result of the unauthorized failure of agents to follow established procedures

and there is no contention that the procedures themselves are inadequate, the Due

Process Clause is satisfied by the provision of a judicial remedy which the claimant

must initiate. 451 U.S. at 541, 543–44. It should be noted that Parratt was a prop1984 AMENDMENT 14—RIGHTS GUARANTEED
subsequently overruled this holding, stating that “the Due Process

Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.” 879

In “rare and extraordinary situations,” where summary action

is necessary to prevent imminent harm to the public, and the private interest infringed is reasonably deemed to be of less importance, government can take action with no notice and no opportunity to defend, subject to a later full hearing.880 Examples are seizure

of contaminated foods or drugs or other such commodities to protect the consumer,881 collection of governmental revenues,882 and the

seizure of enemy property in wartime.883 Thus, citing national security interests, the Court upheld an order, issued without notice and

an opportunity to be heard, excluding a short-order cook employed

by a concessionaire from a Naval Gun Factory, but the basis of the

five-to-four decision is unclear.884 On the one hand, the Court was

ambivalent about a right-privilege distinction; 885 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 highsecurity program.886

Jurisdiction

Generally.—Jurisdiction may be defined as the power of a government to create legal interests, and the Court has long held that

the Due Process Clause limits the abilities of states to exercise this

erty loss case, and thus may be distinguished from liberty cases, where a tort remedy, by itself, may not be adequate process. See Ingraham v. Wright, 430 U.S. at

680–82.

879 Daniels v. Williams, 474 U.S. 327, 328 (1986) (involving negligent acts by

prison officials). Hence, there is no requirement for procedural due process stemming from such negligent acts and no resulting basis for suit under 42 U.S.C. § 1983

for deprivation of rights deriving from the Constitution. Prisoners may resort to state

tort law in such circumstances, but neither the Constitution nor § 1983 provides a

federal remedy.

880 Board of Regents v. Roth, 408 U.S. 564, 570 n.7 (1972); Bell v. Burson, 402

U.S. 535, 542 (1971). See Parratt v. Taylor, 451 U.S. 527, 538–40 (1981). Of course,

one may waive his due process rights, though as with other constitutional rights,

the waiver must be knowing and voluntary. D.H. Overmyer Co. v. Frick Co., 405

U.S. 174 (1972). See also Fuentes v. Shevin, 407 U.S. 67, 94–96 (1972).

881 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).

882 Phillips v. Commissioner, 283 U.S. 589, 597 (1931).

883 Central Union Trust Co. v. Garvan, 254 U.S. 554, 566 (1921).

884 Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961).

885 367 U.S. at 894, 895, 896 (1961).

886 367 U.S. at 896–98. See Goldberg v. Kelly, 397 U.S. 254, 263 n.10 (1970);

Board of Regents v. Roth, 408 U.S. 564, 575 (1972); Arnett v. Kennedy, 416 U.S.

134, 152 (1974) (plurality opinion), and 416 U.S. at 181–183 (Justice White concurring in part and dissenting in part).

AMENDMENT 14—RIGHTS GUARANTEED 1985
power.887 In the famous case of Pennoyer v. Neff,

888 the Court enunciated two principles of jurisdiction respecting the states in a federal system 889: 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.” 890 Over a long period of

time, however, the mobility of American society and the increasing

complexity of commerce led to attenuation of the second principle

of Pennoyer, and consequently the Court established the modern standard of obtaining jurisdiction based upon the nature and the quality of contacts that individuals and corporations have with a state.891

887 Scott v. McNeal, 154 U.S. 34, 64 (1894).

888 95 U.S. 714 (1878).

889 Although these two principles were drawn from the writings of Joseph Story

refining the theories of continental jurists, Hazard, A General Theory of State-Court

Jurisdiction, 1965 SUP. CT. REV. 241, 252–62, the constitutional basis for them was

deemed to be in the Due Process Clause of the Fourteenth Amendment. Pennoyer v.

Neff, 95 U.S. 714, 733–35 (1878). The Due Process Clause and the remainder of the

Fourteenth Amendment had not been ratified at the time of the entry of the statecourt judgment giving rise to the case. This inconvenient fact does not detract from

the subsequent settled use of this constitutional foundation. Pennoyer denied full

faith and credit to the judgment because the state lacked jurisdiction.

890 95 U.S. at 722. The basis for the territorial concept of jurisdiction promulgated in Pennoyer and modified over the years is two-fold: a concern for “fair play

and substantial justice” involved in requiring defendants to litigate cases against

them far from their “home” or place of business. International Shoe Co. v. Washington, 326 U.S. 310, 316, 317 (1945); Travelers Health Ass’n v. Virginia ex rel. State

Corp. Comm., 339 U.S. 643, 649 (1950); Shaffer v. Heitner, 433 U.S. 186, 204 (1977),

and, more important, a concern for the preservation of federalism. International Shoe

Co. v. Washington, 326 U.S. 310, 319 (1945); Hanson v. Denckla, 357 U.S. 235, 251

(1958). The Framers, the Court has asserted, while intending to tie the States together into a Nation, “also intended that the States retain many essential attributes of sovereignty, including, in particular, the sovereign power to try causes in

their courts. The sovereignty of each State, in turn, implied a limitation on the sovereignty of all its sister States—a limitation express or implicit in both the original

scheme of the Constitution and the Fourteenth Amendment.” World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 293 (1980). Thus, the federalism principle is preeminent. “[T]he Due Process Clause ‘does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which

the state has no contacts, ties, or relations.’ . . . Even if the defendant would suffer

minimal or no inconvenience from being forced to litigate before the tribunals of

another State; even if the forum State has a strong interest in applying its law to

the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may

sometimes act to divest the State of its power to render a valid judgment.” 444 U.S.

at 294 (internal quotation from International Shoe Co. v. Washington, 326 U.S. 310,

319 (1945)).

891 International Shoe Co. v. Washington, 326 U.S. 310 (1945)). As the Court

explained in McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957), “[w]ith

this increasing nationalization of commerce has come a great increase in the amount

of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to

defend himself in a State where he engages in economic activity.” See World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980)). The first principle, that a

1986 AMENDMENT 14—RIGHTS GUARANTEED
This “minimum contacts” test, consequently, permits state courts to

obtain power over out-of-state defendants.

In Personam Proceedings Against Individuals.—How jurisdiction is determined depends on the nature of the suit being brought.

If a dispute is directed against a person, not property, the proceedings are considered in personam, and jurisdiction must be established over the defendant’s person in order to render an effective

decree.892 Generally, presence within the state is sufficient to create personal jurisdiction over an individual, if process is served.893

In the case of a resident who is absent from the state, domicile alone

is deemed to be sufficient to keep him within reach of the state courts

for purposes of a personal judgment, and process can be obtained

by means of appropriate, substituted service or by actual personal

service on the resident outside the state.894 However, if the defendant, although technically domiciled there, 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, because it is not reasonably calculated to give actual notice of the proceedings and opportunity to be

heard.895

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.896 The early cases held that the process of a court of one state

could not run into another and summon a resident of that state to

respond to proceedings against him, when neither his person nor

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.

892 National Exchange Bank v. Wiley, 195 U.S. 257, 270 (1904); Iron Cliffs Co.

v. Negaunee Iron Co., 197 U.S. 463, 471 (1905).

893 McDonald v. Mabee, 243 U.S. 90, 91 (1917). Cf. Michigan Trust Co. v. Ferry,

228 U.S. 346 (1913). The rule has been strongly criticized but persists. Ehrenzweig,

The Transient Rule of Personal Jurisdiction: The ‘Power’ Myth and Forum Conveniens,

65 YALE L. J. 289 (1956). But in Burnham v. Superior Court, 495 U.S. 604 (1990),

the Court held that service of process on a nonresident physically present within

the state satisfies due process regardless of the duration or purpose of the nonresident’s visit.

894 Milliken v. Meyer, 311 U.S. 457 (1940).

895 McDonald v. Mabee, 243 U.S. 90 (1917).

896 Rees v. City of 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).

AMENDMENT 14—RIGHTS GUARANTEED 1987
his property was within the jurisdiction of the court rendering the

judgment.897 This rule, however, has been attenuated in a series of

steps.

Consent has always been sufficient to create jurisdiction, even

in the absence of any other connection between the litigation and

the forum. For example, the appearance of the defendant for any

purpose other than to challenge the jurisdiction of the court was

deemed a voluntary submission to the court’s power,898 and even a

special appearance to deny jurisdiction might be treated as consensual submission to the court.899 The concept of “constructive consent” was then seized upon as a basis for obtaining jurisdiction. For

instance, with the advent of the automobile, States were permitted

to engage in the fiction that the use of their highways was conditioned upon the consent of drivers to be sued in state courts for

accidents or other transactions arising out of such use. Thus, a state

could designate a state official as a proper person to receive service

of process in such litigation, and establishing jurisdiction required

only that the official receiving notice communicate it to the person

sued.900

Although the Court approved of the legal fiction that such jurisdiction arose out of consent, the basis for jurisdiction was really the

state’s power to regulate acts done in the state that were dangerous to life or property.901 Because the state did not really have the

ability to prevent nonresidents from doing business in their state,902

this extension was necessary in order to permit states to assume

jurisdiction over individuals “doing business” within the state. Thus,

897 Sugg v. Thornton, 132 U.S. 524 (1889); Riverside Mills v. Menefee, 237 U.S.

189, 193 (1915); Hess v. Pawloski, 274 U.S. 352, 355 (1927). See also Harkness v.

Hyde, 98 U.S. 476 (1879); Wilson v. Seligman, 144 U.S. 41 (1892).

898 Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230 (1900); Western Loan

& Savings Co. v. Butte & Boston Min. Co., 210 U.S. 368 (1908); Houston v. Ormes,

252 U.S. 469 (1920). See also Adam v. Saenger, 303 U.S. 59 (1938) (plaintiff suing

defendants deemed to have consented to jurisdiction with respect to counterclaims

asserted against him).

899 State legislation which provides that a defendant who comes into court to

challenge the validity of service upon him in a personal action surrenders himself

to the jurisdiction of the court, but which allows him to dispute where process was

served, is constitutional and does not deprive him of property without due process

of law. In such a situation, the defendant may ignore the proceedings as wholly ineffective, and attack the validity of the judgment if and when an attempt is made to

take his property thereunder. If he desires, however, to contest the validity of the

court proceedings and he loses, it is within the power of a state to require that he

submit to the jurisdiction of the court to determine the merits. York v. Texas, 137

U.S. 15 (1890); Kauffman v. Wootters, 138 U.S. 285 (1891); Western Life Indemnity

Co. v. Rupp, 235 U.S. 261 (1914).

900 Hess v. Pawloski, 274 U.S. 352 (1927); Wuchter v. Pizzutti, 276 U.S. 13 (1928);

Olberding v. Illinois Cent. R.R., 346 U.S. 338, 341 (1953).

901 Hess v. Pawloski, 274 U.S. 352, 356–57 (1927).

902 274 U.S. at 355. See Flexner v. Farson, 248 U.S. 289, 293 (1919).

1988 AMENDMENT 14—RIGHTS GUARANTEED
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.903

The culmination of this trend, established in International Shoe

Co. v. Washington,

904 was the requirement that there be “minimum

contacts” with the state in question in order to establish jurisdiction. The outer limit of this test is illustrated by Kulko v. Superior

Court,

905 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.906 The argument was made that the father

had “caused an effect” in the state by availing himself of the benefits and protections of California’s laws and by deriving an economic benefit in the lessened expense of maintaining the daughter

in New York. The Court explained that, “[l]ike any standard that

requires a determination of ‘reasonableness,’ the ‘minimum contacts’ test . . . is not susceptible of mechanical application; rather,

the facts of each case must be weighed to determine whether the

requisite ‘affiliating circumstances’ are present.” 907 Although the Court

noted that the “effects” test had been accepted as a test of contacts

when wrongful activity outside a state causes injury within the state

or when commercial activity affects state residents, the Court found

that these factors were not present in this case, and any economic

benefit to Kulko was derived in New York and not in California.908

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.

Walden v. Fiore further articulated what “minimum contacts”

are necessary to create jurisdiction as a result of the relationship

between the defendant, the forum, and the litigation.909 In Walden,

the plaintiffs, who were residents of Nevada, sued a law enforcement officer in federal court in Nevada as a result of an incident

903 Henry L. Doherty & Co. v. Goodman, 294 U.S. 623 (1935).

904 326 U.S. 310, 316 (1945).

905 436 U.S. 84 (1978).

906 Kulko had visited the state twice, seven and six years respectively before

initiation of the present action, his marriage occurring in California on the second

visit, but neither the visits nor the marriage was sufficient or relevant to jurisdiction. 436 U.S. at 92–93.

907 436 U.S. at 92.

908 436 U.S. at 96–98.

909 571 U.S. ___, No. 12–574, slip op. (2014). This type of “jurisdiction” is often

referred to as “specific jurisdiction.”

AMENDMENT 14—RIGHTS GUARANTEED 1989
that occurred in an airport in Atlanta as the plaintiffs were attempting to board a connecting flight from Puerto Rico to Las Vegas. The

Court held that the court in Nevada lacked jurisdiction because of

insufficient contacts between the officer and the state relative to the

alleged harm, as no part of the officer’s conduct occurred in Nevada. In so holding, the Court emphasized that the minimum contacts inquiry should not focus on the resulting injury to the plaintiffs; instead, the proper question is whether the defendant’s conduct

connects him to the forum in a meaningful way.910

Suing Out-of-State (Foreign) Corporations.—A curious aspect of American law is that a corporation has no legal existence

outside the boundaries of the state chartering it.911 Thus, the basis

for state court jurisdiction over an out-of-state (“foreign”) corporation has been even more uncertain than that with respect to individuals. Before International Shoe Co. v. Washington,

912 it was asserted that, because a corporation could not carry on business in a

state without the state’s permission, the state could condition its

permission upon the corporation’s consent to submit to the jurisdiction of the state’s courts, either by appointment of someone to receive process or in the absence of such designation, by accepting

service upon corporate agents authorized to operate within the state.913

Further, by doing business in a state, the corporation was deemed

to be present there and thus subject to service of process and suit.914

This theoretical corporate presence conflicted with the idea of corporations having no existence outside their state of incorporation,

but it was nonetheless accepted that a corporation “doing business”

in a state to a sufficient degree was “present” for service of process

upon its agents in the state who carried out that business.915

Presence alone, however, does not expose a corporation to all

manner of suits through the exercise of general jurisdiction. Only

corporations, whose continuous and systematic affiliations with a

forum make them “essentially at home” there, are broadly ame910 Id. at 6–8.

911 Cf. Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 588 (1839).

912 326 U.S. 310 (1945).

913 Lafayette Ins. Co. v. French, 59 U.S. (18 How.) 404 (1855); St. Clair v. Cox,

196 U.S. 350 (1882); Commercial Mutual Accident Co. v. Davis, 213 U.S. 245 (1909);

Simon v. Southern Ry., 236 U.S. 115 (1915); Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co., 243 U.S. 93 (1917).

914 Presence was first independently used to sustain jurisdiction in International Harvester Co. v. Kentucky, 234 U.S. 579 (1914), although the possibility was

suggested as early as St. Clair v. Cox, 106 U.S. 350 (1882). See also Philadelphia &

Reading Ry. v. McKibbin, 243 U.S. 264, 265 (1917) (Justice Brandeis for Court).

915 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).

1990 AMENDMENT 14—RIGHTS GUARANTEED
nable to suit.916 Without the protection of such a rule, 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.917 And if the corporation stopped doing business in the forum state before suit against it was commenced, it

might well escape jurisdiction altogether.918 In early cases, the issue of the degree of activity and, in particular, the degree of solicitation that was necessary to constitute doing business by a foreign

corporation, was much disputed and led to very particularistic holdings.919 In the absence of enough activity to constitute doing business, the mere presence of an agent, officer, or stockholder, who could

be served, within a state’s territorial limits was not sufficient to enable the state to exercise jurisdiction over the foreign corporation.920

The touchstone in jurisdiction cases was recast by International Shoe Co. v. Washington and its “minimum contacts” analysis.921 International Shoe, an out-of-state corporation, had not been

issued a license to do business in the State of Washington, but it

systematically and continuously employed a sales force of Washington residents to solicit therein and thus was held amenable to suit

916 Daimler AG v. Bauman, 571 U.S. ___, No. 11–965, slip op. at 8 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 920 (2011)) (holding Daimler Chrysler, a German public stock company, could not be subject to suit

in California with respect to acts taken in Argentina by Argentinian subsidiary of

Daimler, notwithstanding the fact that Daimler Chrysler had a U.S. subsidiary that

did business in California).

917 E.g., Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984); Davis v. Farmers Co-operative Co., 262 U.S. 312 (1923); Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516 (1923); Simon v. S. Ry., 236 U.S. 115, 129–30 (1915);

Green v. Chicago, B. & Q. Ry., 205 U.S. 530 (1907); Old Wayne Life Ass’n v. McDonough,

204 U.S. 8 (1907). Continuous operations were sometimes sufficiently substantial and

of a nature to warrant assertions of jurisdiction. St. Louis S.W. Ry. Co. v. Alexander,

227 U.S. 218 (1913); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564

U.S. 915, 922 (2011) (distinguishing application of stream-of-commerce analysis in

specific cases of in-state injury from the degree of presence a corporation must maintain in a state to be amenable to general jurisdiction there).

918 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). Jurisdiction would

continue, however, if a state had conditioned doing business on a firm’s agreeing to

accept service through state officers should it and its agent withdraw. Washington

ex rel. Bond & Goodwin & Tucker v. Superior Court, 289 U.S. 361, 364 (1933).

919 Solicitation of business alone was inadequate to constitute “doing business,”

Green, 205 U.S. at 534, but when connected with other activities could suffice to

confer jurisdiction. Int’l Harvester Co. v. Kentucky, 234 U.S. 579 (1914). Hutchinson

v. Chase & Gilbert, 45 F.2d 139, 141–42 (2d Cir. 1930) (Hand, J., providing survey

of cases).

920 E.g., Riverside Mills v. Menefee, 237 U.S. 189, 195 (1915); Conley v. Mathieson

Alkali Works, 190 U.S. 406 (1903); Goldey v. Morning News, 156 U.S. 518 (1895);

but see Conn. Mut. Life Ins. Co. v. Spratley, 172 U.S. 602 (1899).

921 326 U.S. 310 (1945).

AMENDMENT 14—RIGHTS GUARANTEED 1991
in Washington for unpaid unemployment compensation contributions for such salesmen. The Court deemed a notice of assessment

served personally upon one of the local sales solicitors, and a copy

of the assessment sent by registered mail to the corporation’s principal office in Missouri, sufficient to apprise the corporation of the

proceeding.

To reach this conclusion, the Court not only overturned prior

holdings that mere solicitation of business does not constitute a sufficient contact to subject a foreign corporation to a state’s jurisdiction,922 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 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.” 923 As to the

scope of application to be accorded this “fair play and substantial

justice” doctrine, the Court concluded that “so far as . . . [corporate] obligations arise out of or are connected with activities within

the State, a procedure which requires the corporation to respond to

a suit brought to enforce them can, in most instances, hardly be

said to be undue.” 924

Extending this logic, a majority of the Court ruled that an outof-state association selling mail order insurance had developed sufficient contacts and ties with Virginia residents so that the state

could institute enforcement proceedings under its Blue Sky Law by

forwarding notice to the company by registered mail, notwithstanding that the Association solicited business in Virginia solely through

recommendations of existing members and was represented therein

by no agents whatsoever.925 The Due Process Clause was declared

922 This departure was recognized by Justice Rutledge subsequently in Nippert

v. City of Richmond, 327 U.S. 416, 422 (1946). Because 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 used International Harvester Co. v.

Kentucky, 234 U.S. 579 (1914), to find it was “present” in the state.

923 International Shoe Co. v. Washington, 326 U.S. 310, 316–17 (1945).

924 326 U.S. at 319.

925 Travelers Health Ass’n v. Virginia ex rel. State Corp. Comm’n, 339 U.S. 643

(1950). The decision was 5-to-4 with one of the majority Justices also contributing a

1992 AMENDMENT 14—RIGHTS GUARANTEED
not to “forbid a State to protect its citizens from such injustice” of

having to file suits on their claims at a far distant home office of

such company, especially in view of the fact that such suits could

be more conveniently tried in Virginia where claims of loss could

be investigated.926

Likewise, the Court reviewed a California statute which subjected foreign mail order insurance companies engaged in contracts

with California residents to suit in California courts, and which had

authorized the petitioner to serve a Texas insurer by registered mail

only.927 The contract between the company and the insured specified that Austin, Texas, was the place of “making” and the place

where liability should be deemed to arise. The company mailed premium notices to the insured in California, and he mailed his premium payments to the company in Texas. Acknowledging that the

connection of the company with California was tenuous—it had no

office or agents in the state and no evidence had been presented

that it had solicited anyone other than the insured for business—

the Court sustained jurisdiction on the basis that the suit was on a

contract which had a substantial connection with California. “The

contract was delivered in California, the premiums were mailed there

and the insured was a resident of that State when he died. It cannot be denied that California has a manifest interest in providing

effective means of redress for its residents when their insurers refuse to pay claims.” 928

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).

926 339 U.S. at 647–49. The holding in Minnesota Commercial Men’s Ass’n v.

Benn, 261 U.S. 140 (1923), that a similar mail order insurance company could not

be viewed as doing business in the forum state and that the circumstances under

which its contracts with forum state citizens, executed and to be performed in its

state of incorporation, were consummated could not support an implication that the

foreign company had consented to be sued in the forum state, was distinguished

rather than formally overruled. 339 U.S. at 647. In any event, Benn could not have

survived McGee v. International Life Ins. Co., 355 U.S. 220 (1957), below.

927 McGee v. International Life Ins. Co., 355 U.S. 220 (1957).

928 355 U.S. at 223. The Court also noticed the proposition that the insured could

not bear the cost of litigation away from home as well as the insurer. See also Perkins

v. Benguet Consolidating Mining Co., 342 U.S. 437 (1952), a case too atypical on its

facts to permit much generalization but which does appear to verify the implication

of International Shoe that in personam jurisdiction may attach to a corporation even

where the cause of action does not arise out of the business done by defendant in

the forum state, as well as to state, in dictum, that the mere presence of a corporate official within the state on business of the corporation would suffice to create

jurisdiction if the claim arose out of that business and service were made on him

within the state. 342 U.S. at 444–45. The Court held that the state could, but was

AMENDMENT 14—RIGHTS GUARANTEED 1993
In making this decision, the Court noted that “[l]ooking back

over the long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.” 929 However, in Hanson

v. Denckla, decided during the same Term, the Court found in

personam jurisdiction lacking for the first time since International

Shoe Co. v. Washington, pronouncing firm due process limitations.

In Hanson,

930 the issue was whether a Florida court considering a

contested will obtained jurisdiction over corporate trustees of disputed property through use of ordinary mail and publication. The

will had been entered into and probated in Florida, the claimants

were resident in Florida and had been personally served, but the

trustees, who were indispensable parties, were resident in Delaware. Noting the trend in enlarging the ability of the states to obtain in personam jurisdiction over absent defendants, the Court denied the exercise of nationwide in personam jurisdiction by states,

saying that “it would be a mistake to assume that th[e] trend [to

expand the reach of state courts] heralds the eventual demise of

all restrictions on the personal jurisdiction of state courts.” 931

The Court recognized in Hanson that Florida law was the most

appropriate law to be applied in determining the validity of the will

and that the corporate defendants might be little inconvenienced

by having to appear in Florida courts, but it denied that either circumstance satisfied the Due Process Clause. The Court noted that

due process restrictions do more than guarantee immunity from inconvenient or distant litigation, in that “[these restrictions] are consequences of territorial limitations on the power of the respective

States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has

the ‘minimum contacts’ with that State that are a prerequisite to

its exercise of power over him.” The only contacts the corporate denot 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.

929 McGee v. International Life Ins. Co., 355 U.S. 220, 222 (1957). An exception

exists with respect to in personam jurisdiction in domestic relations cases, at least

in some instances. E.g., Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957) (holding that

sufficient contacts afforded Nevada in personam jurisdiction over a New York resident wife for purposes of dissolving the marriage but Nevada did not have jurisdiction to terminate the wife’s claims for support).

930 357 U.S. 235 (1958). The decision was 5-to-4. See 357 U.S. at 256 (Justice

Black dissenting), 262 (Justice Douglas dissenting).

931 357 U.S. at 251. In dissent, Justice Black observed that “of course we have

not reached the point where state boundaries are without significance and I do not

mean to suggest such a view here.” 357 U.S. at 260.

1994 AMENDMENT 14—RIGHTS GUARANTEED
fendants had in Florida consisted of a relationship with the individual defendants. “The unilateral activity of those who claim some

relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule

will vary with the quality and nature of the defendant’s activity,

but it is essential in each case that there be some act by which the

defendant purposefully avails himself of the privilege of conducting

activities within the forum State, thus invoking the benefits and

protections of its laws. . . . The settlor’s execution in Florida of her

power of appointment cannot remedy the absence of such an act in

this case.” 932

The Court continued to apply International Shoe principles in

diverse situations. Thus, circulation of a magazine in a state was

an adequate basis for that state to exercise jurisdiction over an outof-state corporate magazine publisher in a libel action. The fact that

the plaintiff did not have “minimum contacts” with the forum state

was not dispositive since the relevant inquiry is the relations among

the defendant, the forum, and the litigation.933 Or, damage done to

the plaintiff’s reputation in his home state caused by circulation of

a defamatory magazine article there may justify assertion of jurisdiction over the out-of-state authors of such article, despite the lack

of minimum contact between the authors (as opposed to the publishers) and the state.934 Further, though 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

932 357 U.S. at 251, 253–54. Upon an analogy of choice of law and forum non

conveniens, Justice Black argued that the relationship of the nonresident defendants and the subject of the litigation to the Florida made Florida the natural and

constitutional basis for asserting jurisdiction. 357 U.S. at 251, 258–59. The Court

has numerous times asserted that contacts sufficient for the purpose of designating

a particular state’s law as appropriate may be insufficient for the purpose of asserting jurisdiction. See Shaffer v. Heitner, 433 U.S. 186, 215 (1977); Kulko v. Superior

Court, 436 U.S. 84, 98 (1978); World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286, 294–95 (1980). On the due process limits on choice of law decisions, see Allstate

Ins. Co. v. Hague, 449 U.S. 302 (1981).

933 Keeton v. Hustler Magazine, 465 U.S. 770 (1984) (holding as well that the

forum state may apply “single publication rule” making defendant liable for nationwide damages).

934 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).

AMENDMENT 14—RIGHTS GUARANTEED 1995
of dealings) demonstrate a deliberate reaching out to establish contacts with the franchisor in the franchisor’s home state.935

The Court has continued to wrestle over when a state may adjudicate a products liability claim for an injury occurring within it,

at times finding the defendant’s contacts with the place of injury to

be too attenuated to support its having to mount a defense there.

In World-Wide Volkswagen Corp. v. Woodson,

936 the Court applied

its “minimum contacts” test to preclude the assertion of jurisdiction over two foreign corporations that did no business in the forum state. Plaintiffs had sustained personal injuries in Oklahoma

in an accident involving an alleged defect in their automobile. The

car had been purchased the previous year in New York, the plaintiffs were New York residents at time of purchase, and the accident

had occurred while they were driving through Oklahoma on their

way to a new residence in Arizona. Defendants were the automobile retailer and its wholesaler, both New York corporations that

did no business in Oklahoma. The Court found no circumstances

justifying assertion by Oklahoma courts of jurisdiction over defendants. The Court found that the defendants (1) carried on no activity in Oklahoma, (2) closed no sales and performed no services there,

(3) availed themselves of none of the benefits of the state’s laws,

(4) solicited no business there either through salespersons or through

advertising reasonably calculated to reach the state, and (5) sold

no cars to Oklahoma residents or indirectly served or sought to serve

the Oklahoma market. Although it might have been foreseeable that

the automobile would travel to Oklahoma, foreseeability was held

to be relevant only insofar as “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” 937 The Court in World-Wide

Volkswagen Corp. contrasted the facts of the case with the instance

of a corporation “deliver[ing] its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” 938

In Asahi Metal Industry Co. v. Superior Court,

939 the Court addressed more closely how jurisdiction flows with products down935 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).

936 444 U.S. 286 (1980).

937 444 U.S. at 297.

938 444 U.S. at 298.

939 480 U.S. 102 (1987). In Asahi, a California resident sued, inter alia, a Taiwanese tire tube manufacturer for injuries caused by a blown-out motorcycle tire.

After plaintiff and the tube manufacturer settled the case, which had been filed in

1996 AMENDMENT 14—RIGHTS GUARANTEED
stream. The Court identified two standards for limiting jurisdiction

even as products proceed to foreseeable destinations. The more general standard harked back to the fair play and substantial justice

doctrine of International Shoe and requires balancing the respective interests of the parties, the prospective forum state, and alternative fora. All the Justices agreed with the legitimacy of this test

in assessing due process limits on jurisdiction.940 However, four Justices would also apply a more exacting test: A defendant who placed

a product in the stream of commerce knowing that the product might

eventually be sold in a state will be subject to jurisdiction there

only if the defendant also had purposefully acted to avail itself of

the state’s market. According to Justice O’Connor, who wrote the

opinion espousing this test, a defendant subjected itself to jurisdiction by targeting or serving customers in a state through, for example, direct advertising, marketing through a local sales agent,

or establishing channels for providing regular advice to local customers. Action, not expectation, is key.941 In Asahi, the state was

found to lack jurisdiction under both tests cited.

Doctrinal differences on the due process touchstones in streamof-commerce cases became more critical to the outcome in J. McIntyre

Machinery, Ltd. v. Nicastro.

942 Justice Kennedy, writing for a fourJustice plurality, asserted that it is a defendant’s purposeful availment of the forum state that makes jurisdiction consistent with traditional notions of fair play and substantial justice. The question is

not so much the fairness of a state reaching out to bring a foreign

defendant before its courts as it is a matter of a foreign defendant

having acted within a state so as to bring itself within the state’s

limited authority. Thus, a British machinery manufacturer who targeted the U.S. market generally through engaging a nationwide distributor and attending trade shows, among other means, could not

be sued in New Jersey for an industrial accident that occurred in

California, the tube manufacturer sought indemnity in the California courts against

Asahi Metal, the Japanese supplier of the tube’s valve assembly.

940 All the Justices also agreed that due process considerations foreclosed jurisdiction in Asahi, even though Asahi Metal could have foreseen that some of its valve

assemblies would end up incorporated into tire tubes sold in the United States. Three

of the Asahi Justices had been dissenters in World-Wide Volkswagen Corp. v. Woodson.

Of the three dissenters, Justice Brennan had argued that the “minimum contacts”

test was obsolete and that jurisdiction should be predicated upon the balancing of

the interests of the forum state and plaintiffs against the actual burden imposed on

defendant, 444 U.S. at 299, while Justices Marshall and Blackmun had applied the

test and found jurisdiction because of the foreseeability of defendants that a defective product of theirs might cause injury in a distant state and because the defendants had entered into an interstate economic network. 444 U.S. at 313.

941 480 U.S. at 109–113 (1987). Agreeing with Justice O’Connor on this test were

Chief Justice Rehnquist and Justices Powell and Scalia.

942 564 U.S. ___, No. 09–1343, slip op. (2011).

AMENDMENT 14—RIGHTS GUARANTEED 1997
the state. Even though at least one of its machines (and perhaps

as many as four) were sold to New Jersey concerns, the defendant

had not purposefully targeted the New Jersey market through, for

example, establishing an office, advertising, or sending employees.943 Writing in dissent for herself and two other Justices, Justice

Ginsburg concluded that it was reasonable and fair, and therefore

consistent with due process requirements, for New Jersey to claim

jurisdiction to adjudicate the case locally because the defendant manufacturer had promoted its products in the United States and established a national distribution system. “On what sensible view of the

allocation of adjudicatory authority,” the dissent rhetorically asked,

“could the place of [the plaintiff’s] injury within the United States

be deemed off limits for his products liability claim against a foreign manufacturer who targeted the United States (including all the

States that constitute the Nation) as the territory it sought to develop?” 944 Concurring with the plurality, Justice Breyer emphasized the outcome lay in stream-of-commerce precedents that held

isolated or infrequent sales could not support jurisdiction. At the

same time, Justice Breyer cautioned against adoption of the plurality’s strict active availment of the forum rule, especially because the

Court had yet to consider due process requirements in the context

of evolving business models, modern e-commerce in particular.945

Actions In Rem: Proceeding Against Property.—In an in rem

action, which is an action brought directly against a property interest, a state can validly proceed to settle controversies with regard

to rights or claims against tangible or intangible property within

its borders, notwithstanding that jurisdiction over the defendant was

never established.946 Unlike jurisdiction in personam, a judgment

entered by a court with in rem jurisdiction does not bind the defendant personally but determines the title to or status of the only property in question.947 Proceedings brought to register title to land,948

943 564 U.S. ___, No. 09–1343, slip op. (2011) (Kennedy, Roberts, Scalia and Thomas).

944 564 U.S. ___, No. 09–1343, slip op. at 6–7 (2011) (Ginsburg, Sotomayor and

Kagan dissenting).

945 564 U.S. ___, No. 09–1343, slip op. (2011) (Breyer and Alito concurring).

946 Accordingly, by reason of its inherent authority over titles to land within its

territorial confines, a state court could proceed to judgment respecting the ownership of such property, even though it lacked a constitutional competence to reach

claimants of title who resided beyond its borders. Arndt v. Griggs, 134 U.S. 316, 321

(1890); Grannis v. Ordean, 234 U.S. 385 (1914); Pennington v. Fourth Nat’l Bank,

243 U.S. 269, 271 (1917).

947 Boswell’s Lessee v. Otis, 50 U.S. (9 How.) 336, 348 (1850).

948 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).

1998 AMENDMENT 14—RIGHTS GUARANTEED
to condemn 949 or confiscate 950 real or personal property, or to administer a decedent’s estate 951 are typical in rem actions. Due process is satisfied by seizure of the property (the “res”) and notice to

all who have or may have interests therein.952 Under prior case law,

a court could acquire in rem jurisdiction over nonresidents by mere

constructive service of process,953 under the theory that property

was always in possession of its owners and that seizure would afford them notice, because they would keep themselves apprized of

the state of their property. It was held, however, that this fiction

did not satisfy the requirements of due process, and, whatever the

nature of the proceeding, that notice must be given in a manner

that actually notifies the person being sought or that has a reasonable certainty of resulting in such notice.954

Although the Court has now held “that all assertions of statecourt jurisdiction must be evaluated according to the [‘minimum contacts’] standards set forth in International Shoe Co. v. Washington,” 955 it does not appear that this will appreciably change the result

for in rem jurisdiction over property. “[T]he presence of property in

a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For

example, when claims to the property itself are the source of the

underlying controversy between the plaintiff and the defendant, it

would be unusual for the State where the property is located not to

have jurisdiction. In such cases, the defendant’s claim to property

located in the State would normally indicate that he expected to

benefit from the State’s protection of his interest. The State’s strong

interests in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses

949 Huling v. Kaw Valley Ry. & Improvement Co., 130 U.S. 559 (1889).

950 The Confiscation Cases, 87 U.S. (20 Wall.) 92 (1874).

951 Clarke v. Clarke, 178 U.S. 186 (1900); Riley v. New York Trust Co., 315 U.S.

343 (1942).

952 Pennoyer v. Neff, 95 U.S. 714 (1878). Predeprivation notice and hearing may

be required if the property is not the sort that, given advance warning, could be

removed to another jurisdiction, destroyed, or concealed. United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) (notice to owner required before seizure

of house by government).

953 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).

954 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950); Walker

v. City of Hutchinson, 352 U.S. 112 (1956); Schroeder v. City of New York, 371 U.S.

208 (1962); Robinson v. Hanrahan, 409 U.S. 38 (1972).

955 433 U.S. 186 (1977).

AMENDMENT 14—RIGHTS GUARANTEED 1999
will be found in the State.” 956 Thus, for “true” in rem actions, the

old results are likely to still prevail.

Quasi in Rem: Attachment Proceedings.—If a defendant is

neither domiciled nor present in a state, he cannot be served personally, and any judgment in money obtained against him would

be unenforceable. This does not, however, prevent attachment of a

defendant’s property within the state. The practice of allowing a state

to attach a non-resident’s real and personal property situated within

its borders to satisfy a debt or other claim by one of its citizens

goes back to colonial times. Attachment is considered a form of in

rem proceeding sometimes called “quasi in rem,” and under Pennoyer v. Neff 957 an attachment could be implemented by obtaining

a writ against the local property of the defendant and giving notice

by publication.958 The judgement was then satisfied from the property attached, and if the attached property was insufficient to satisfy the claim, the plaintiff could go no further.959

This form of proceeding raised many questions. Of course, there

were always instances in which it was fair to subject a person to

suit on his property located in the forum state, such as where the

property was related to the matter sued over.960 In others, the question was more disputed, as in the famous New York Court of Appeals case of Seider v. Roth,

961 in which the property subject to attachment was the contractual obligation of the defendant’s insurance

company to defend and pay the judgment. But, in Harris v. Balk,

962

956 433 U.S. at 207–08 (footnotes 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.

957 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).

958 The theory was that property is always in possession of an owner, and that

seizure of the property will inform him. This theory of notice was disavowed sooner

than the theory of jurisdiction. See “Actions in Rem: Proceedings Against Property”,

supra.

959 Other, quasi in rem actions, which are directed against persons, but ultimately have property as the subject matter, such as probate, Goodrich v. Ferris, 214

U.S. 71, 80 (1909), and garnishment of foreign attachment proceedings, Pennington

v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917); Harris v. Balk, 198 U.S. 215 (1905),

might also be prosecuted to conclusion without requiring the presence of all parties

in interest. The jurisdictional requirements for rendering a valid divorce decree are

considered under the Full Faith and Credit Clause, Art. I, § 1.

960 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).

961 17 N.Y. 2d 111, 269 N.Y.S. 2d 99, 216 N.E. 2d 312 (1966).

962 198 U.S. 215 (1905).

2000 AMENDMENT 14—RIGHTS GUARANTEED
the facts of the case and the establishment of jurisdiction through

quasi in rem proceedings raised the issue of fairness and territoriality. The claimant was a Maryland resident who was owed a debt

by Balk, a North Carolina resident. The Marylander ascertained,

apparently adventitiously, that Harris, a North Carolina resident

who owed Balk an amount of money, was passing through Maryland, and the Marylander attached this debt. Balk had no notice of

the action and a default judgment was entered, after which Harris

paid over the judgment to the Marylander. When Balk later sued

Harris in North Carolina to recover on his debt, Harris argued that

he had been relieved of any further obligation by satisfying the judgment in Maryland, and the Supreme Court sustained his defense,

ruling that jurisdiction had been properly obtained and the Maryland judgment was thus valid.963

Subsequently, Harris v. Balk was overruled by Shaffer v. Heitner,

964

in which the Court rejected the Delaware state court’s jurisdiction,

holding that the “minimum contacts” test of International Shoe applied to all in rem and quasi in rem actions. The case involved a

Delaware sequestration statute under which plaintiffs were authorized to bring actions against nonresident defendants by attaching

their “property” within Delaware, the property here consisting of

shares of corporate stock and options to stock in the defendant corporation. The stock was considered to be in Delaware because that

was the state of incorporation, but none of the certificates representing the seized stocks were physically present in Delaware. The reason for applying the same test as is applied in in personam cases,

the Court said, “is simple and straightforward. It is premised on

recognition that ‘[t]he phrase ‘judicial jurisdiction’ over a thing,’ is

a customary elliptical way of referring to jurisdiction over the interests of persons in a thing.” 965 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.’ ” 966

963 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).

964 433 U.S. 186 (1977).

965 433 U.S. at 207 (internal quotation from RESTATEMENT (SECOND) OF CONFLICT OF

LAWS 56, Introductory Note (1971)).

966 433 U.S. at 207. The characterization of actions in rem as being not actions

against a res but against persons with interests merely reflects Justice Holmes’ insight in Tyler v. Judges of the Court of Registration, 175 Mass. 71, 76–77, 55 N.E.,

812, 814, appeal dismissed, 179 U.S. 405 (1900).

AMENDMENT 14—RIGHTS GUARANTEED 2001
A further tightening of jurisdictional standards occurred in Rush

v. Savchuk.

967 The plaintiff was injured in a one-car accident in Indiana while a passenger in a car driven by defendant. Plaintiff later

moved to Minnesota and sued defendant, still resident in Indiana,

in state court in Minnesota. There were no contacts between the

defendant and Minnesota, but defendant’s insurance company did

business there and plaintiff garnished the insurance contract, signed

in Indiana, under which the company was obligated to defend defendant in litigation and indemnify him to the extent of the policy

limits. The Court refused to permit jurisdiction to be grounded on

the contract; the contacts justifying jurisdiction must be those of

the defendant engaging in purposeful activity related to the forum.968 Rush thus resulted in the demise of the controversial Seider

v. Roth doctrine, which lower courts had struggled to save after Shaffer v. Heitner.

969

Actions in Rem: Estates, Trusts, Corporations.—Generally,

probate will occur where the decedent was domiciled, and, as a probate judgment is considered in rem, a determination as to assets in

that state will be determinative as to all interested persons.970 Insofar as the probate affects real or personal property beyond the

state’s boundaries, however, the judgment is in personam and can

bind only parties thereto or their privies.971 Thus, the Full Faith

and Credit Clause would not prevent an out-of-state court in the

state where the property is located from reconsidering the first court’s

finding of domicile, which could affect the ultimate disposition of

the property.972

The difficulty of characterizing the existence of the res in a particular jurisdiction is illustrated by the in rem aspects of Hanson v.

967 444 U.S. 320 (1980).

968 444 U.S. at 328–30. In dissent, Justices Brennan and Stevens argued that

what the state courts had done was the functional equivalent of direct-action statutes. Id. at 333 (Justice Stevens); World-Wide Volkswagen Corp. v. Woodson, 444

U.S. 286, 299 (1980) (Justice Brennan). The Court, however, refused so to view the

Minnesota garnishment action, saying that “[t]he State’s ability to exert its power

over the ‘nominal defendant’ is analytically prerequisite to the insurer’s entry into

the case as a garnishee.” Id. at 330–31. Presumably, the comment is not meant to

undermine the validity of such direct-action statutes, which was upheld in Watson

v. Employers Liability Assurance Corp., 348 U.S. 66 (1954), a choice-of-law case rather

than a jurisdiction case.

969 See O’Conner v. Lee-Hy Paving Corp., 579 F.2d 194 (2d Cir. 1978), cert. denied, 439 U.S. 1034 (1978).

970 Goodrich v. Ferris, 214 U.S. 71, 80 (1909); McCaughey v. Lyall, 224 U.S. 558

(1912).

971 Baker v. Baker, Eccles & Co., 242 U.S. 394 (1917); Riley v. New York Trust

Co., 315 U.S. 343 (1942).

972 315 U.S. at 353.

2002 AMENDMENT 14—RIGHTS GUARANTEED
Denckla.

973 As discussed earlier,974 the decedent created a trust with

a Delaware corporation as trustee,975 and the Florida courts had

attempted to assert both in personam and in rem jurisdiction over

the Delaware corporation. Asserting the old theory that a court’s in

rem jurisdiction “is limited by the extent of its power and by the

coordinate authority of sister States,” 976 i.e., whether the court has

jurisdiction over the thing, the Court thought it clear that the trust

assets that were the subject of the suit were located in Delaware

and thus the Florida courts had no in rem jurisdiction. The Court

did not expressly consider whether the International Shoe test should

apply to such in rem jurisdiction, as it has now held it generally

must, but it did briefly consider whether Florida’s interests arising

from its authority to probate and construe the domiciliary’s will,

under which the foreign assets might pass, were a sufficient basis

of in rem jurisdiction and decided they were not.977 The effect of

International Shoe in this area is still to be discerned.

The reasoning of the Pennoyer 978 rule, that seizure of property

and publication was sufficient to give notice to nonresidents or absent defendants, has also been applied in proceedings for the forfeiture of abandoned property. If all known claimants were personally

served and all claimants who were unknown or nonresident were

given constructive notice by publication, judgments in these proceedings were held binding on all.979 But, in Mullane v. Central Hanover

Bank & Trust Co.,

980 the Court, while declining to characterize the

proceeding as in rem or in personam, held that a bank managing a

common trust fund in favor of nonresident as well as resident beneficiaries could not obtain a judicial settlement of accounts if the

only notice was publication in a local paper. Although such notice

by publication was sufficient as to beneficiaries whose interests or

973 357 U.S. 235 (1957).

974 The in personam aspect of this decision is considered supra.

975 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.

976 357 U.S. at 246.

977 357 U.S. at 247–50. The four dissenters, Justices Black, Burton, Brennan,

and Douglas, believed that the transfer in Florida of $400,000 made by a domiciliary and affecting beneficiaries, almost all of whom lived in that state, gave rise to a

sufficient connection with Florida to support an adjudication by its courts of the effectiveness of the transfer. 357 U.S. at 256, 262.

978 See discussion of Pennoyer, supra.

979 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).

980 339 U.S. 306 (1950).

AMENDMENT 14—RIGHTS GUARANTEED 2003
addresses were unknown to the bank, the Court held that it was

feasible to make serious efforts to notify residents and nonresidents whose whereabouts were known, such as by mailing notice

to the addresses on record with the bank.981

Notice: Service of Process.—Before a state may legitimately

exercise control over persons and property, the state’s jurisdiction

must be perfected by an appropriate service of process that is effective to notify all parties of proceedings that may affect their rights.982

Personal service guarantees actual notice of the pendency of a legal action, and has traditionally been deemed necessary in actions

styled in personam.

983 But “certain less rigorous notice procedures

have enjoyed substantial acceptance throughout our legal history;

in light of this history and the practical obstacles to providing personal service in every instance,” the Court in some situations has

allowed the use of procedures that “do not carry with them the same

certainty of actual notice that inheres in personal service.” 984 But,

whether the action be in rem or in personam, there is a constitutional minimum; due process requires “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.” 985

981 A related question is which state has the authority to escheat a corporate

debt. See Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71 (1961); Texas v. New

Jersey, 379 U.S. 674 (1965). Where a state seeks to escheat intangible corporate

property such as uncollected debt, the Court found that the multiplicity of states

with a possible interest made a “contacts” test unworkable. Citing ease of administration rather than logic or jurisdiction, the Court held that the authority to take

the uncollected claims against a corporation by escheat would be based on whether

the last known address on the company’s books for the each creditor was in a particular state.

982 “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and afford

them an opportunity to present their objections.” Mullane v. Central Hanover Bank

& Trust Co., 339 U.S. 306, 314 (1950). “There . . . must be a basis for the defendant’s amenability to service of summons. Absent consent, this means there must

be authorization for service of summons on the defendant.” Omni Capital Int’l v.

Rudolph Wolff & Co., 484 U.S. 97 (1987).

983 McDonald v. Mabee, 243 U.S. 90, 92 (1971).

984 Greene v. Lindsey, 456 U.S. 444, 449 (1982). See Dusenbery v. United States,

534 U.S. 161 (2001) (upholding a notice of forfeiture that was delivered by certified

mail to the mailroom of a prison where the individual to be served was incarcerated, even though the individual himself did not sign for the letter).

985 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

Thus, in Jones v. Flowers, 547 U.S. 220 (2006), the Court held that, after a state’s

certified letter, intended to notify a property owner that his property would be sold

unless he satisfied a tax delinquency, was returned by the post office marked “unclaimed,” the state should have taken additional reasonable steps to notify the property owner, as it would have been practicable for it to have done so. And, in Greene

v. Lindsey, 456 U.S. 444 (1982), the Court held that, in light of substantial evidence

2004 AMENDMENT 14—RIGHTS GUARANTEED
The use of mail to convey notice, for instance, has become quite

established,986 especially for assertion of in personam jurisdiction

extraterritorially upon individuals and corporations having “minimum contacts” with a forum state, where various “long-arm” statutes authorize notice by mail.987 Or, in a class action, due process

is satisfied by mail notification of out-of-state class members, giving such members the opportunity to “opt out” but with no requirement that inclusion in the class be contingent upon affirmative response.988 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.989

Power of the States to Regulate Procedure

Generally.—As long as a party has been given sufficient notice

and an opportunity to defend his interest, the Due Process Clause

of the Fourteenth Amendment does not generally mandate the particular forms of procedure to be used in state courts.990 The states

may regulate the manner in which rights may be enforced and wrongs

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 satisfy due process. Without requiring service by

mail, the Court observed that the mails “provide an ‘efficient and inexpensive means

of communication’ upon which prudent men will ordinarily rely in the conduct of

important affairs.” Id. at 455 (citations omitted). 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).

986 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).

987 See, e.g., G.D. Searle & Co. v. Cohn, 455 U.S. 404, 409–12 (1982) (discussing

New Jersey’s “long-arm” rule, under which a plaintiff must make every effort to serve

process upon someone within the state and then, only if “after diligent inquiry and

effort personal service cannot be made” within the state, “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).

988 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).

989 E.g., Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954) (authorizing direct action against insurance carrier rather than against the insured).

990 Holmes v. Conway, 241 U.S. 624, 631 (1916); Louisville & Nashville R.R. v.

Schmidt, 177 U.S. 230, 236 (1900). A state “is free to regulate procedure of its courts

in accordance with it own conception of policy and fairness unless in so doing it

offends some principle of justice so rooted in the traditions and conscience of our

people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105

(1934); West v. Louisiana, 194 U.S. 258, 263 (1904); Chicago, B. & Q. R.R. v. City of

Chicago, 166 U.S. 226 (1897); Jordan v. Massachusetts, 225 U.S. 167, 176, (1912).

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,

AMENDMENT 14—RIGHTS GUARANTEED 2005
remedied,991 and may create courts and endow them with such jurisdiction as, in the judgment of their legislatures, seems appropriate.992 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 that ordinarily do not implicate the Fourteenth Amendment. The function of the Fourteenth Amendment is

negative rather than affirmative 993 and in no way obligates the states

to adopt specific measures of reform.994

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.995 But, foreclosure of all access to the

courts, through financial barriers and perhaps through other means

as well, is subject to federal constitutional scrutiny and must be

justified by reference to a state interest of suitable importance. Thus,

where a state has monopolized the avenues of settlement of disputes between persons by prescribing judicial resolution, and where

the dispute involves a fundamental interest, such as marriage and

and Privileges and Immunities Clauses of the Constitution. Angel v. Bullington, 330

U.S. 183 (1947).

991 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).

992 Cincinnati Street Ry. v. Snell, 193 U.S. 30, 36 (1904).

993 Some recent decisions, however, have imposed some restrictions on state procedures that require substantial reorientation of process. While this is more generally true in the context of criminal cases, in which the appellate process and postconviction remedial process have been subject to considerable revision in the treatment

of indigents, some requirements have also been imposed in civil cases. Boddie v. Connecticut, 401 U.S. 371 (1971); Lindsey v. Normet, 405 U.S. 56, 74–79 (1972); Santosky

v. Kramer, 455 U.S. 745 (1982). Review has, however, been restrained with regard

to details. See, e.g., Lindsey v. Normet, 405 U.S. at 64–69.

994 Ownbey v. Morgan, 256 U.S. 94, 112 (1921). Thus the Fourteenth Amendment does not constrain the states to accept modern doctrines of equity, or adopt a

combined system of law and equity procedure, or dispense with all necessity for form

and method in pleading, or give untrammeled 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 that 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).

995 Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Nor did the

retroactive application of this statutory requirement to actions pending at the time

of its adoption violate 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.

2006 AMENDMENT 14—RIGHTS GUARANTEED
its dissolution, the state may not deny access to those persons unable to pay its fees.996

Older cases, which have not been questioned by more recent ones,

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.997 For similar reasons, a requirement of the performance of a

chemical analysis as a condition precedent to a suit to recover for

damages resulting to crops from allegedly deficient fertilizers, while

allowing other evidence, was not deemed arbitrary or unreasonable.998

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.999

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.1000 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.1001 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.1002 Similarly, a nonresident defendant in a suit begun by foreign attachment, even though he has no

996 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).

997 Young Co. v. McNeal-Edwards Co., 283 U.S. 398 (1931); Adam v. Saenger,

303 U.S. 59 (1938).

998 Jones v. Union Guano Co., 264 U.S. 171 (1924).

999 Sawyer v. Piper, 189 U.S. 154 (1903).

1000 Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133 (1915).

1001 Lindsey v. Normet, 405 U.S. 56, 64–69 (1972). See also Bianchi v. Morales,

262 U.S. 170 (1923) (upholding mortgage law providing for summary foreclosure of

a mortgage without allowing any defense except payment)..

1002 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

AMENDMENT 14—RIGHTS GUARANTEED 2007
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.1003

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.1004 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.1005 Congress may, however, severely restrict attorney’s fees in an effort to

keep an administrative claims proceeding informal.1006

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.1007 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.1008

By virtue of its plenary power to prescribe the character of the

sentence which shall be awarded against those found guilty of crime,

a state may provide that a public officer embezzling public money

shall, notwithstanding that he has made restitution, suffer 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

own tort law permits it to provide immunity defenses for its employees and thus

defeat recovery).

1003 Ownbey v. Morgan, 256 U.S. 94 (1921).

1004 Ballard v. Hunter, 204 U.S. 241, 259 (1907).

1005 Missouri, Kansas & Texas Ry. v. Cade, 233 U.S. 642, 650 (1914).

1006 Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305 (1985) (limitation of attorneys’ fees to $10 in veterans benefit proceedings does not violate claimants’ Fifth Amendment due process rights absent a showing of probability of error

in the proceedings that presence of attorneys would sharply diminish). See also United

States Dep’t of Labor v. Triplett, 494 U.S. 715 (1990) (upholding regulations under

the Black Lung Benefits Act prohibiting contractual fee arrangements).

1007 Lowe v. Kansas, 163 U.S. 81 (1896). Consider, however, the possible bearing of Giaccio v. Pennsylvania, 382 U.S. 399 (1966) (statute allowing jury to impose

costs on acquitted defendant, but containing no standards to guide discretion, violates due process).

1008 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).

2008 AMENDMENT 14—RIGHTS GUARANTEED
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.1009 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.1010

To deter careless destruction of human life, a state may allow

punitive damages to be assessed in actions against employers for

deaths caused by the negligence of their employees,1011 and may also

allow punitive damages for fraud perpetrated by employees.1012 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.1013 The Court has indicated, however, that, although the Excessive Fines Clause of the Eighth Amendment “does

not apply to awards of punitive damages in cases between private

parties,” 1014 a “grossly excessive” award of punitive damages violates substantive due process, as the Due Process Clause limits the

amount of punitive damages to what is “reasonably necessary to

vindicate the State’s legitimate interests in punishment and deterrence.” 1015 These limits may be discerned by a court by examining

the degree of reprehensibility of the act, the ratio between the punitive award and plaintiff’s actual or potential harm, and the legis1009 Coffey v. Harlan County, 204 U.S. 659, 663, 665 (1907).

1010 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).

1011 Pizitz Co. v. Yeldell, 274 U.S. 112, 114 (1927).

1012 Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991).

1013 Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991) (finding sufficient constraints on jury discretion in jury instructions and in post-verdict review). See also

Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) (striking down a provision of the

Oregon Constitution limiting judicial review of the amount of punitive damages awarded

by a jury).

1014 Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 260 (1989).

1015 BMW of North America, Inc. v. Gore, 517 U.S. 559, 568 (1996) (holding that

a $2 million judgment for failing to disclose to a purchaser that a “new” car had

been repainted was grossly excessive in relation to the state’s interest, as only a few

of the 983 similarly repainted cars had been sold in that same state); State Farm

Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (holding that a $145 million

judgment for refusing to settle an insurance claim was excessive as it included consideration of conduct occurring in other states). But see TXO Corp. v. Alliance Resources, 509 U.S. 443 (1993) (punitive damages of $10 million for slander of title

does not violate the Due Process Clause even though the jury awarded actual damages of only $19,000).

AMENDMENT 14—RIGHTS GUARANTEED 2009
lative sanctions provided for comparable misconduct.1016 In addition, the “Due Process Clause forbids a State to use a punitive damages

award to punish a defendant for injury that it inflicts upon nonparties . . . .” 1017

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.1018

Thus, where a receiver for property is appointed 13 years after

the disappearance of the owner and notice is made by publication,

it is not a violation of due process to bar actions relative to that

property after an interval of only one year after such appointment.1019 When a state, by law, suddenly prohibits all actions to

contest tax deeds which have been of record for two years unless

they are brought within six months after its passage, no unconstitutional deprivation is effected.1020 No less valid is a statute which

provides that when a person has been in possession of wild lands

under a recorded deed continuously for 20 years and had paid taxes

thereon during the same, and the former owner in that interval pays

nothing, no action to recover such land shall be entertained unless

commenced within 20 years, or before the expiration of five years

following enactment of said provision.1021 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

1016 BMW v. Gore, 517 U.S. at 574–75 (1996). The Court has suggested that awards

exceeding a single-digit ratio between punitive and compensatory damages would

be unlikely to pass scrutiny under due process, and that the greater the compensatory damages, the less this ratio should be. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. at 424 (2003).

1017 Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007) (punitive damages

award overturned because trial court had allowed jury to consider the effect of defendant’s conduct on smokers who were not parties to the lawsuit).

1018 Wheeler v. Jackson, 137 U.S. 245, 258 (1890); Kentucky Union Co. v. Kentucky, 219 U.S. 140, 156 (1911). Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422,

437 (1982) (discussing discretion of states in erecting reasonable procedural requirements for triggering or foreclosing the right to an adjudication).

1019 Blinn v. Nelson, 222 U.S. 1 (1911).

1020 Turner v. New York, 168 U.S. 90, 94 (1897).

1021 Soper v. Lawrence Brothers, 201 U.S. 359 (1906). Nor is a former owner

who had not been in possession for five years after and fifteen years before said

enactment thereby deprived of property without due process.

2010 AMENDMENT 14—RIGHTS GUARANTEED
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.1022

Moreover, a state may extend as well as shorten the time in

which suits may be brought in its courts and may even entirely remove a statutory bar to the commencement of litigation. Thus, a

repeal or extension of a statute of limitations affects no unconstitutional deprivation of property of a debtor-defendant in whose favor

such statute had already become a defense. “A right to defeat a just

debt by the statute of limitation . . . [is not] a vested right,” such

as is protected by the Constitution. Accordingly no offense against

the Fourteenth Amendment is committed by revival, through an extension or repeal, of an action on an implied obligation to pay a

child for the use of her property,1023 or a suit to recover the purchase price of securities sold in violation of a Blue Sky Law,1024 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.1025

However, for suits to recover real and personal property, when

the right of action has been barred by a statute of limitations and

title as well as real ownership have become vested in the defendant, any later act removing or repealing the bar would be void as

attempting an arbitrary transfer of title.1026 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.1027

Burden of Proof and Presumptions.—It is clearly within the

domain of the legislative branch of government to establish presumptions and rules respecting burden of proof in litigation.1028 Nonetheless, the Due Process Clause does prevent the deprivation of lib1022 Mattson v. Department of Labor, 293 U.S. 151, 154 (1934).

1023 Campbell v. Holt, 115 U.S. 620, 623, 628 (1885).

1024 Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945).

1025 Gange Lumber Co. v. Rowley, 326 U.S. 295 (1945).

1026 Campbell v. Holt, 115 U.S. 620, 623 (1885). See also Stewart v. Keyes, 295

U.S. 403, 417 (1935).

1027 Home Ins. Co. v. Dick, 281 U.S. 397, 398 (1930).

1028 Hawkins v. Bleakly, 243 U.S. 210, 214 (1917); James-Dickinson Co. v. Harry,

273 U.S. 119, 124 (1927). Congress’s 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 deterAMENDMENT 14—RIGHTS GUARANTEED 2011
erty or property upon application of a standard of proof too lax to

make reasonable assurance of accurate factfinding. Thus, “[t]he function of a standard of proof, as that concept is embodied in the Due

Process Clause and in the realm of factfinding, is to ‘instruct the

factfinder concerning the degree of confidence our society thinks he

should have in the correctness of factual conclusions for a particular type of adjudication.’ ” 1029

Applying the formula it has worked out for determining what

process is due in a particular situation,1030 the Court has held that

a standard at least as stringent as clear and convincing evidence is

required in a civil proceeding to commit an individual involuntarily

to a state mental hospital for an indefinite period.1031 Similarly, because the interest of parents in retaining custody of their children

is fundamental, the state may not terminate parental rights through

reliance on a standard of preponderance of the evidence—the proof

necessary to award money damages in an ordinary civil action—

but must prove that the parents are unfit by clear and convincing

evidence.1032 Further, unfitness of a parent may not simply be presumed because of some purported assumption about general characteristics, but must be established.1033

As long as a presumption is not unreasonable and is not conclusive, it does not violate the Due Process Clause. Legislative fiat may

not take the place of fact in the determination of issues involving

life, liberty, or property, however, and a statute creating a presumption which is entirely arbitrary and which operates to deny a fair

opportunity to repel it or to present facts pertinent to one’s defense

is void.1034 On the other hand, if there is a rational connection between what is proved and what is inferred, legislation declaring that

mined the evidentiary standard in certain statutory actions. Nishikawa v. Dulles,

356 U.S. 129 (1958); Woodby v. INS, 385 U.S. 276 (1966).

1029 Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397

U.S. 358, 370 (1970) (Justice Harlan concurring)).

1030 Mathews v. Eldridge, 424 U.S. 319 (1976).

1031 Addington v. Texas, 441 U.S. 418 (1979).

1032 Santosky v. Kramer, 455 U.S. 745 (1982). Four Justices dissented, arguing

that considered as a whole the statutory scheme comported with due process. Id. at

770 (Justices Rehnquist, White, O’Connor, and Chief Justice Burger). Application of

the traditional preponderance of the evidence standard is permissible in paternity

actions. Rivera v. Minnich, 483 U.S. 574 (1987).

1033 Stanley v. Illinois, 405 U.S. 645 (1972) (presumption that unwed fathers are

unfit parents). But see Michael H. v. Gerald D., 491 U.S. 110 (1989) (statutory presumption of legitimacy accorded to a child born to a married woman living with her

husband defeats the right of the child’s biological father to establish paternity.

1034 Presumptions were voided in Bailey v. Alabama, 219 U.S. 219 (1911) (anyone breaching personal services contract guilty of fraud); Manley v. Georgia, 279 U.S.

1 (1929) (every bank insolvency deemed fraudulent); Western & Atlantic R.R. v. Henderson, 279 U.S. 639 (1929) (collision between train and auto at grade crossing constitutes negligence by railway company); Carella v. California, 491 U.S. 263 (1989)

2012 AMENDMENT 14—RIGHTS GUARANTEED
the proof of one fact or group of facts shall constitute prima facie

evidence of a main or ultimate fact will be sustained.1035

For a brief period, the Court used what it called the “irrebuttable presumption doctrine” to curb the legislative tendency to confer a benefit or to impose a detriment based on presumed characteristics based on the existence of another characteristic.1036 Thus, in

Stanley v. Illinois,

1037 the Court found invalid a construction of the

state statute that presumed illegitimate fathers to be unfit parents

and that prevented them from objecting to state wardship. Mandatory maternity leave rules requiring pregnant teachers to take unpaid maternity leave at a set time prior to the date of the expected

births of their babies were voided as creating a conclusive presumption that every pregnant teacher who reaches a particular point of

pregnancy becomes physically incapable of teaching.1038

Major controversy developed over the application of “irrebuttable presumption doctrine” in benefits cases. Thus, although a state

may require that nonresidents must pay higher tuition charges at

state colleges than residents, and while the Court assumed that a

durational residency requirement would be permissible as a prerequisite to qualify for the lower tuition, it was held impermissible for

the state to presume conclusively that because the legal address of

a student was outside the state at the time of application or at some

point during the preceding year he was a nonresident as long as he

remained a student. The Due Process Clause required that the student be afforded the opportunity to show that he is or has become

a bona fide resident entitled to the lower tuition.1039

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

(conclusive presumption of theft and embezzlement upon proof of failure to return a

rental vehicle).

1035 Presumptions sustained include Hawker v. New York, 170 U.S. 189 (1898)

(person convicted of felony unfit to practice medicine); Hawes v. Georgia, 258 U.S. 1

(1922) (person occupying property presumed to have knowledge of still found on property); Bandini Co. v. Superior Court, 284 U.S. 8 (1931) (release of natural gas into

the air from well presumed wasteful); Atlantic Coast Line R.R. v. Ford, 287 U.S.

502 (1933) (rebuttable presumption of railroad negligence for accident at grade crossing). See also Morrison v. California, 291 U.S. 82 (1934).

1036 The approach was not unprecedented, some older cases having voided tax

legislation that presumed conclusively an ultimate fact. Schlesinger v. Wisconsin,

270 U.S. 230 (1926) (deeming any gift made by decedent within six years of death

to be a part of estate denies estate’s right to prove gift was not made in contemplation of death); Heiner v. Donnan, 285 U.S. 312 (1932); Hoeper v. Tax Comm’n, 284

U.S. 206 (1931).

1037 405 U.S. 645 (1972).

1038 Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974).

1039 Vlandis v. Kline, 412 U.S. 441 (1973).

AMENDMENT 14—RIGHTS GUARANTEED 2013
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.1040 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,1041 and it precluded Congress and legislatures from making general classifications that avoided the administrative costs of

individualization in many areas.

Use of the doctrine was curbed if not halted, however, in

Weinberger v. Salfi,

1042 in which the Court upheld the validity of a

Social Security provision requiring that the spouse of a covered wage

earner must have been married to the wage earner for at least nine

months prior to his death in order to receive benefits as a spouse.

Purporting to approve but to distinguish the prior cases in the line,1043

the Court imported traditional equal protection analysis into considerations of due process challenges to statutory classifications.1044 Extensions of the prior cases to government entitlement classifications, such as the Social Security Act qualification standard before

it, would, said the Court, “turn the doctrine of those cases into a

virtual engine of destruction for countless legislative judgments which

have heretofore been thought wholly consistent with the Fifth and

Fourteenth Amendments to the Constitution.” 1045 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 pro1040 Department of Agriculture v. Murry, 413 U.S. 508 (1973).

1041 Thus, on the some day Murry was decided, a similar food stamp qualification was struck down on equal protection grounds. Department of Agriculture v. Moreno,

413 U.S. 528 (1973).

1042 422 U.S. 749 (1975).

1043 Stanley and LaFleur were distinguished as involving fundamental rights of

family and childbearing, 422 U.S. at 771, and Murry was distinguished as involving

an irrational classification. Id. at 772. Vlandis, said Justice Rehnquist for the Court,

meant no more than that when a state fixes residency as the qualification it may

not deny to one meeting the test of residency the opportunity so to establish it. Id.

at 771. But see id. at 802–03 (Justice Brennan dissenting).

1044 422 U.S. at 768–70, 775–77, 785 (using Dandridge v. Williams, 397 U.S. 471

(1970); Richardson v. Belcher, 404 U.S. 78 (1971); and similar cases).

1045 Weinberger v. Salfi, 422 U.S. 749, 772 (1975).

2014 AMENDMENT 14—RIGHTS GUARANTEED
tection sense of those expressions) 1046 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.1047

Trials and Appeals.—Trial by jury in civil trials, unlike the

case in criminal trials, has not been deemed essential to due process, and the Fourteenth Amendment has not been held to restrain

the states in retaining or abolishing civil juries.1048 Thus, abolition

of juries in proceedings to enforce liens,1049 mandamus 1050 and quo

warranto 1051 actions, and in eminent domain 1052 and equity 1053 proceedings has been approved. states are also free to adopt innovations respecting selection and number of jurors. Verdicts rendered

by ten out of twelve jurors may be substituted for the requirement

of unanimity,1054 and petit juries containing eight rather than the

conventional number of twelve members may be established.1055

If a full and fair trial on the merits is provided, due process

does not require a state to provide appellate review.1056 But if an

appeal is afforded, the state must not so structure it as to arbitrarily deny to some persons the right or privilege available to others.1057

1046 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).

1047 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).

1048 Walker v. Sauvinet, 92 U.S. 90 (1876); New York Central R.R. v. White, 243

U.S. 188, 208 (1917).

1049 Marvin v. Trout, 199 U.S. 212, 226 (1905).

1050 In re Delgado, 140 U.S. 586, 588 (1891).

1051 Wilson v. North Carolina, 169 U.S. 586 (1898); Foster v. Kansas, 112 U.S.

201, 206 (1884).

1052 Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 694 (1897).

1053 Montana Co. v. St. Louis M. & M. Co., 152 U.S. 160, 171 (1894).

1054 See Jordan v. Massachusetts, 225 U.S. 167, 176 (1912).

1055 See Maxwell v. Dow, 176 U.S. 581, 602 (1900).

1056 Lindsey v. Normet, 405 U.S. 56, 77 (1972) (citing cases).

1057 405 U.S. at 74–79 (conditioning appeal in eviction action upon tenant posting bond, with two sureties, in twice the amount of rent expected to accrue pending

appeal, is invalid when no similar provision is applied to other cases). Cf. Bankers

Life & Casualty Co. v. Crenshaw, 486 U.S. 71 (1988) (assessment of 15% penalty on

party who unsuccessfully appeals from money judgment meets rational basis test

AMENDMENT 14—RIGHTS GUARANTEED 2015
PROCEDURAL DUE PROCESS—CRIMINAL

Generally: The Principle of Fundamental Fairness

The Court has held that practically all the criminal procedural

guarantees of the Bill of Rights—the Fourth, Fifth, Sixth, and Eighth

Amendments—are fundamental to state criminal justice systems and

that the absence of one or the other particular guarantees denies a

suspect or a defendant due process of law under the Fourteenth

Amendment.1058 In addition, the Court has held that the Due Process Clause protects against practices and policies that violate precepts of fundamental fairness,1059 even if they do not violate specific guarantees of the Bill of Rights.1060 The standard query in such

cases is whether the challenged practice or policy violates “a fundamental principle of liberty and justice which inheres in the very

under equal protection challenge, since it applies to plaintiffs and defendants alike

and does not single out one class of appellants).

1058 See analysis under the Bill of Rights, “Fourteenth Amendment,” supra.

1059 For instance, In re Winship, 397 U.S. 358 (1970), held that, despite the absence of a specific constitutional provision requiring proof beyond a reasonable doubt

in criminal cases, such proof is required by due process. For other recurrences to

general due process reasoning, as distinct from reliance on more specific Bill of Rights

provisions, see, e.g., United States v. Bryant, 579 U.S. ___, No. 15–420, slip op. at

15–16 (2016) (holding that principles of due process did not prevent a defendant’s

prior uncounseled convictions in tribal court from being used as the basis for a sentence enhancement, as those convictions complied with the Indian Civil Rights Act,

which itself contained requirements that “ensure the reliability of tribal-court convictions”). See also Hicks v. Oklahoma, 447 U.S. 343 (1980) (where sentencing enhancement scheme for habitual offenders found unconstitutional, defendant’s sentence cannot be sustained, even if sentence falls within range of unenhanced sentences);

Sandstrom v. Montana, 442 U.S. 510 (1979) (conclusive presumptions in jury instruction may not be used to shift burden of proof of an element of crime to defendant);

Kentucky v. Whorton, 441 U.S. 786 (1979) (fairness of failure to give jury instruction on presumption of innocence evaluated under totality of circumstances); Taylor

v. Kentucky, 436 U.S. 478 (1978) (requiring, upon defense request, jury instruction

on presumption of innocence); Patterson v. New York, 432 U.S. 197 (1977) (defendant may be required to bear burden of affirmative defense); Henderson v. Kibbe,

431 U.S. 145 (1977) (sufficiency of jury instructions); Estelle v. Williams, 425 U.S.

501 (1976) (a state cannot compel an accused to stand trial before a jury while dressed

in identifiable prison clothes); Mullaney v. Wilbur, 421 U.S. 684 (1975) (defendant

may not be required to carry the burden of disproving an element of a crime for

which he is charged); Wardius v. Oregon, 412 U.S. 470 (1973) (defendant may not

be held to rule requiring disclosure to prosecution of an alibi defense unless defendant is given reciprocal discovery rights against the state); Chambers v. Mississippi,

410 U.S. 284 (1973) (defendant may not be denied opportunity to explore confession

of third party to crime for which defendant is charged).

1060 Justice Black thought the Fourteenth Amendment should be limited to the

specific guarantees found in the Bill of Rights. See, e.g., In re Winship, 397 U.S.

358, 377 (1970) (dissenting). For Justice Harlan’s response, see id. at 372 n.5 (concurring).

2016 AMENDMENT 14—RIGHTS GUARANTEED
idea of a free government and is the inalienable right of a citizen

of such government.” 1061

This inquiry contains a historical component, as “recent cases

. . . have proceeded upon the valid assumption that state criminal

processes are not imaginary and theoretical schemes but actual systems bearing virtually every characteristic of the common-law system that has been developing contemporaneously in England and

in this country. The question thus is whether given this kind of system a particular procedure is fundamental—whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty. . . . [Therefore, the limitations imposed by the Court on the

states are] not necessarily fundamental to fairness in every criminal system that might be imagined but [are] fundamental in the

context of the criminal processes maintained by the American

States.” 1062

The Elements of Due Process

Initiation of the Prosecution.—Indictment by a grand jury

is not a requirement of due process; a state may proceed instead

by information.1063 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,1064 even aside

from the notice requirements of the Sixth Amendment.1065 Where,

1061 Twining v. New Jersey, 211 U.S. 78, 106 (1908). The question is phrased as

whether a claimed right is “implicit in the concept of ordered liberty,” whether it

partakes “of the very essence of a scheme of ordered liberty,” Palko v. Connecticut,

302 U.S. 319, 325 (1937), or whether it “offend[s] those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward

those charged with the most heinous offenses,” Rochin v. California, 342 U.S. 165,

169 (1952).

1062 Duncan v. Louisiana, 391 U.S. 145, 149–50 n.14 (1968).

1063 Hurtado v. California, 110 U.S. 516 (1884). The Court has also rejected an

argument that due process requires that criminal prosecutions go forward only on a

showing of probable cause. Albright v. Oliver, 510 U.S. 266 (1994) (holding that there

is no civil rights action based on the Fourteenth Amendment for arrest and imposition of bond without probable cause).

1064 Smith v. O’Grady, 312 U.S. 329 (1941) (guilty plea of layman unrepresented

by counsel to what prosecution represented as a charge of simple burglary but which

was in fact a charge of “burglary with explosives” carrying a much lengthier sentence voided). See also Cole v. Arkansas, 333 U.S. 196 (1948) (affirmance by appellate court of conviction and sentence on ground that evidence showed defendant guilty

under a section of the statute not charged violated due process); In re Ruffalo, 390

U.S. 544 (1968) (disbarment in proceeding on charge which was not made until after lawyer had testified denied due process); Rabe v. Washington, 405 U.S. 313 (1972)

(affirmance of obscenity conviction because of the context in which a movie was shown—

grounds neither covered in the statute nor listed in the charge—was invalid).

1065 See Sixth Amendment, Notice of Accusation, supra.

AMENDMENT 14—RIGHTS GUARANTEED 2017
of course, a grand jury is used, it must be fairly constituted and

free from prejudicial influences.1066

Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine.—Criminal statutes that lack sufficient definiteness or specificity are commonly held “void for vagueness.” 1067 Such legislation

“may run afoul of the Due Process Clause because it fails to give

adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged,

or to guide courts in trying those who are accused.” 1068 “Men of common intelligence cannot be required to guess at the meaning of [an]

enactment.” 1069

For instance, the Court voided for vagueness a criminal statute

providing that a person was a “gangster” and subject to fine or imprisonment if he was without lawful employment, had been either

convicted at least three times for disorderly conduct or had been

convicted of any other crime, and was “known to be a member of a

gang of two or more persons.” The Court observed that neither common law nor the statute gave the words “gang” or “gangster” definite meaning, that the enforcing agencies and courts were free to

1066 Norris v. Alabama, 294 U.S. 587 (1935); Cassell v. Texas, 339 U.S. 282 (1950);

Eubanks v. Louisiana, 356 U.S. 584 (1958); Hernandez v. Texas, 347 U.S. 475 (1954);

Pierre v. Louisiana, 306 U.S. 354 (1939). On prejudicial publicity, see Beck v. Washington, 369 U.S. 541 (1962).

1067 Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).

1068 Musser v. Utah, 333 U.S. 95, 97 (1948). “The vagueness may be from uncertainty in regard to persons within the scope of the act . . . or in regard to the applicable tests to ascertain guilt.” Id. at 97. “Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful

conduct, we insist that laws give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited, so that he may act accordingly. Vague laws

may trap the innocent by not providing fair warnings. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards

for those who apply them. A vague law impermissibly delegates basic policy matters

to policemen, judges, and juries for resolution on an ad hoc and subjective basis,

with 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).

1069 Winters v. New York, 333 U.S. 507, 515–16 (1948). “The vagueness may be

from uncertainty in regard to persons within the scope of the act . . . or in regard

to the applicable test to ascertain guilt.” Id. Cf. Colten v. Kentucky, 407 U.S. 104,

110 (1972). Thus, a state statute imposing severe, cumulative punishments upon contractors with the state who pay their workers less than the “current rate of per

diem wages in the locality where the work is performed” was held to be “so vague

that men of common intelligence must necessarily guess at its meaning and differ

as to its application.” Connally v. General Const. Co., 269 U.S. 385 (1926). Similarly, a statute which allowed jurors to require an acquitted defendant to pay the

costs of the prosecution, elucidated only by the judge’s instruction to the jury that

the defendant should only have to pay the costs if it thought him guilty of “some

misconduct” though innocent of the crime with which he was charged, was found to

fall short of the requirements of due process. Giaccio v. Pennsylvania, 382 U.S. 399

(1966).

2018 AMENDMENT 14—RIGHTS GUARANTEED
construe the terms broadly or narrowly, and that the phrase “known

to be a member” was ambiguous. The statute was held void, and

the Court refused to allow specification of details in the particular

indictment to save it because it was the statute, not the indictment, that prescribed the rules to govern conduct.1070

A statute may be so vague or so threatening to constitutionally

protected activity that it can be pronounced wholly unconstitutional; in other words, “unconstitutional on its face.” 1071 Thus, for

instance, a unanimous Court in Papachristou v. City of Jacksonville 1072 struck down as invalid on its face a vagrancy ordinance

that 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 . . . .” 1073 The ordinance

was found to be facially invalid, according to Justice Douglas for

the Court, because it did not give fair notice, it did not require specific intent to commit an unlawful act, it permitted and encouraged

arbitrary and erratic arrests and convictions, it committed too much

discretion to policemen, and it criminalized activities that by modern standards are normally innocent.1074

1070 Lanzetta v. New Jersey, 306 U.S. 451 (1939); Edelman v. California, 344

U.S. 357 (1953).

1071 Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Smith v. Goguen,

415 U.S. 566 (1974). Generally, a vague statute that regulates in the area of First

Amendment guarantees will be pronounced wholly void. Winters v. New York, 333

U.S. 507, 509–10 (1948); Thornhill v. Alabama, 310 U.S. 88 (1940).

1072 405 U.S. 156 (1972).

1073 405 U.S. at 156 n.1. Similar concerns regarding vagrancy laws had been

expressed previously. See, e.g., Winters v. New York, 333 U.S. 507, 540 (1948) (Justice Frankfurter dissenting); Edelman v. California, 344 U.S. 357, 362 (1953) (Justice Black dissenting); Hicks v. District of Columbia, 383 U.S. 252 (1966) (Justice

Douglas dissenting).

1074 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 found impermissibly vague and void on its face because it encroached on the freedom of assembly. Coates v. City of Cincinnati, 402 U.S. 611 (1971).

See Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) (conviction under statute imposing penalty for failure to “move on” voided); Bouie v. City of Columbia,

378 U.S. 347 (1964) (conviction on trespass charges arising out of a sit-in at a drugstore lunch counter voided since the trespass statute did not give fair notice that it

was a crime to refuse to leave private premises after being requested to do so); Kolender

v. Lawson, 461 U.S. 352 (1983) (requirement that person detained in valid Terry

stop provide “credible and reliable” identification is facially void as encouraging arbitrary enforcement).

AMENDMENT 14—RIGHTS GUARANTEED 2019
In FCC v. Fox, 567 U.S. ___, No. 10–1293, slip op. (2012) the

Court held that the Federal Communiations Commission (FCC) had

violated the Fifth Amendment due process rights of Fox Television

and ABC, Inc., because the FCC had not given fair notice that broadcasting isolated instances of expletives or brief nudity could lead to

punishment. 18 U.S.C. § 1464 bans the broadcast of “any obscene,

indecent, or profane language”, but the FCC had a long-standing

policy that it would not consider “fleeting” instances of indecency

to be actionable, and had confirmed such a policy by issuance of an

industry guidance. The policy was not announced until after the instances at issues in this case (two concerned isolated utterances of

expletives during two live broadcasts aired by Fox Television, and

a brief exposure of the nude buttocks of an adult female character

by ABC). The Commission policy in place at the time of the broadcasts, therefore, gave the broadcasters no notice that a fleeting instance of indecency could be actionable as indecent.

In other situations, a statute may be unconstitutionally vague

because the statute is worded in a standardless way that invites

arbitrary enforcement. For example, in Johnson v. United States,

after years of litigation on the meaning and scope of the “residual

clause” of the Armed Career Criminal Act of 1984 (ACCA),1075 the

Court concluded that the clause in question was void for vagueness.1076 In relevant part, the ACCA imposes an increased prison

term upon a felon who is in possession of a firearm, if that felon

has previously been convicted for a “violent felony,” a term defined

by the statute to include “burglary, arson, or extortion, [a crime that]

involves use of explosives, or” crimes that fall within the residual

clause—that is, crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another.” 1077 In

Johnson, prosecutors sought an enhanced sentence for a felon found

in possession of a firearm, arguing that one of the defendant’s previous crimes—unlawful possession of a short-barreled shotgun—

qualified as a violent felony because the crime amounted to one that

“involve[d] conduct that presents a serious potential risk of physical injury to another.” 1078 To determine whether a crime falls within

the residual clause, the Court had previously endorsed a “categorical approach”—that is, instead of looking to whether the facts of a

specific offense presented a serious risk of physical injury to another, the Supreme Court had interpreted the ACCA to require courts

1075 See, e.g., Sykes v. United States, 564 U.S. 1 (2011); Chambers v. United States,

555 U.S. 122 (2009); Begay v. United States, 553 U.S. 137 (2008); James v. United

States, 550 U.S. 192 (2007).

1076 See Johnson v. United States, 576 U.S. ___, No. 13–7120, slip op. (2015).

1077 See 18 U.S.C. § 924(e)(2)(B) (2012).

1078 Johnson, slip op. at 2–3.

2020 AMENDMENT 14—RIGHTS GUARANTEED
to look to whether the underlying crime falls within a category such

that the “ordinary case” of the crime would present a serious risk

of physical injury.1079 The Court in Johnson concluded that the residual clause was unconstitutionally vague because the clause’s requirement that courts determine what an “ordinary case” of a crime

entails led to “grave uncertainty” about (1) how to estimate the risk

posed by the crime and (2) how much risk was sufficient to qualify

as a violent felony.1080 For example, in determining whether attempted burglary ordinarily posed serious risks of physical injury,

the Court suggested that reasonable minds could differ as to whether

an attempted burglary would typically end in a violent encounter,

resulting in the conclusion that the residual clause provided “no reliable way” to determine what crimes fell within its scope.1081 In so

holding, the Court relied heavily on the difficulties that federal courts

(including the Supreme Court) have had in establishing consistent

standards to adjudge the scope of the residual clause, noting that

the failure of “persistent efforts” to establish a standard can provide evidence of vagueness.1082

On the other hand, some less vague statutes may be held unconstitutional only in application to the defendant before the Court.1083

For instance, where the terms of a statute could be applied both to

innocent or protected conduct (such as free speech) and unprotected conduct, but the valuable effects of the law outweigh its potential general harm, such a statute will be held unconstitutional

only as applied.1084 Thus, in Palmer v. City of Euclid,

1085 an ordinance punishing “suspicious persons” defined as “[a]ny person who

wanders about the streets or other public ways or who is found abroad

at late or unusual hours in the night without any visible or lawful

business and who does not give satisfactory account of himself” was

found void only as applied to a particular defendant. In Palmer, the

Court found that the defendant, having dropped off a passenger and

begun talking into a two-way radio, was engaging in conduct which

1079 See James, 550 U.S. at 208.

1080 Johnson, slip op. at 5–6.

1081 Id.

1082 See id. at 6–10 (“Nine years’ experience trying to derive meaning from the

residual clause convinces us that we have embarked upon a failed enterprise.”).

1083 Where the terms of a vague statute do not threaten a constitutionally protected right, and where the conduct at issue in a particular case is clearly proscribed, then a due process challenge is unlikely to be successful. Where the conduct in question is at the margins of the meaning of an unclear statute, however, it

will be struck down as applied. E.g., United States v. National Dairy Corp., 372 U.S.

29 (1963).

1084 Palmer v. City of Euclid, 402 U.S. 544 (1971); Village of Hoffman Estates v.

The Flipside, 455 U.S. 489, 494–95 (1982).

1085 402 U.S. 544 (1971).

AMENDMENT 14—RIGHTS GUARANTEED 2021
could not reasonably be anticipated as fitting within the “without

any visible or lawful business” portion of the ordinance’s definition.

Loitering statutes that are triggered by failure to obey a police

dispersal order are suspect, and may be struck down if they leave

a police officer absolute discretion to give such orders.1086 Thus, a

Chicago ordinance that required police to disperse all persons in

the company of “criminal street gang members” while in a public

place with “no apparent purpose,” failed to meet the “requirement

that a legislature establish minimal guidelines to govern law enforcement.” 1087 The Court noted that “no apparent purpose” is inherently subjective because its application depends on whether some

purpose is “apparent” to the officer, who would presumably have the

discretion to ignore such apparent purposes as engaging in idle conversation or enjoying the evening air.1088 On the other hand, where

such a statute additionally required a finding that the defendant

was intent on causing inconvenience, annoyance, or alarm, it was

upheld against facial challenge, at least as applied to a defendant

who was interfering with the ticketing of a car by the police.1089

Statutes with vague standards may nonetheless be upheld if the

text of statute is interpreted by a court with sufficient clarity.1090

Thus, the civil commitment of persons of “such conditions of emotional instability . . . as to render such person irresponsible for his

conduct with respect to sexual matters and thereby dangerous to

other persons” was upheld by the Court, based on a state court’s

construction of the statute as only applying to persons who, by habitual course of misconduct in sexual matters, have evidenced utter lack of power to control their sexual impulses and are likely to

inflict injury. The underlying conditions—habitual course of misconduct in sexual matters and lack of power to control impulses and

likelihood of attack on others—were viewed as calling for evidence

of past conduct pointing to probable consequences and as being as

susceptible of proof as many of the criteria constantly applied in

criminal proceedings.1091

Conceptually related to the problem of definiteness in criminal

statutes is the problem of notice. Ordinarily, it can be said that ig1086 Kolender v. Lawson, 461 U.S. 352, 358 (1983).

1087 City of Chicago v. Morales, 527 U.S. 41 (1999).

1088 527 U.S. at 62.

1089 Colten v. Kentucky, 407 U.S. 104 (1972).

1090 See, e.g., McDonnell v. United States, 579 U.S. ___, No. 15–474, slip op. at

23 (2016) (narrowly interpreting the term “official act” to avoid a construction of the

Hobbs Act and federal honest-services fraud statute that would allow public officials

to be subject to prosecution without fair notice “for the most prosaic interactions”

between officials and their constituents).

1091 Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940).

2022 AMENDMENT 14—RIGHTS GUARANTEED
norance of the law affords no excuse, or, in other instances, that

the nature of the subject matter or conduct may be sufficient to alert

one that there are laws which must be observed.1092 On occasion

the Court has even approved otherwise vague statutes because the

statute forbade only “willful” violations, which the Court construed

as requiring knowledge of the illegal nature of the proscribed conduct.1093 Where conduct is not in and of itself blameworthy, however, a criminal statute may not impose a legal duty without notice.1094

The question of notice has also arisen in the context of “judgemade” law. Although the Ex Post Facto Clause forbids retroactive

application of state and federal criminal laws, no such explicit restriction applies to the courts. Thus, when a state court abrogated

the common law rule that a victim must die within a “year and a

day” in order for homicide charges to be brought in Rogers v. Tennessee,

1095 the question arose whether such rule could be applied to

acts occurring before the court’s decision. The dissent argued vigorously that unlike the traditional common law practice of adapting

legal principles to fit new fact situations, the court’s decision was

an outright reversal of existing law. Under this reasoning, the new

“law” could not be applied retrospectively. The majority held, however, that only those holdings which were “unexpected and indefensible by reference to the law which had been express prior to the

conduct in issue” 1096 could not be applied retroactively. The relatively archaic nature of “year and a day rule”, its abandonment by

most jurisdictions, and its inapplicability to modern times were all

1092 E.g., United States v. Freed, 401 U.S. 601 (1971). Persons may be bound by

a novel application of a statute, not supported by Supreme Court or other “fundamentally similar” case precedent, so long as the court can find that, under the circumstance, “unlawfulness . . . is apparent” to the defendant. United States v. Lanier,

520 U.S. 259, 271–72 (1997).

1093 E.g., Boyce Motor Lines v. United States, 342 U.S. 337 (1952); Colautti v.

Franklin, 439 U.S. 379, 395 (1979). Cf. Screws v. United States, 325 U.S. 91, 101–03

(1945) (plurality opinion). The Court have even done so when the statute did not

explicitly include such a mens rea requirement. E.g., Morissette v. United States,

342 U.S. 246 (1952).

1094 See, e.g., Lambert v. California, 355 U.S. 225 (1957) (invalidating a municipal code that made it a crime for anyone who had ever been convicted of a felony to

remain in the city for more than five days without registering.). In Lambert, the

Court emphasized that the act of being in the city was not itself blameworthy, holding that the failure to register was quite “unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his

deed.” “Where a person did not know of the duty to register and where there was no

proof of the probability of such knowledge, he may not be convicted consistently with

due process. Were it otherwise, the evil would be as great as it is when the law is

written in print too fine to read or in a language foreign to the community.” Id. at

228, 229–30.

1095 532 U.S. 451 (2001).

1096 Bouie v. City of Columbia, 378 U.S. 347, 354 (1964).

AMENDMENT 14—RIGHTS GUARANTEED 2023
cited as reasons that the defendant had fair warning of the possible abrogation of the common law rule.

Entrapment.—Certain criminal offenses, because they are consensual actions taken between and among willing parties, present

police with difficult investigative problems.1097 Thus, in order to deter such criminal behavior, police agents may “encourage” persons

to engage in criminal behavior, such as selling narcotics or contraband,1098 or they may may seek to test the integrity of public employees, officers or public officials by offering them bribes.1099 In such

cases, an “entrapment” defense is often made, though it is unclear

whether the basis for the defense is the Due Process Clause, the

supervisory authority of the federal courts to deter wrongful police

conduct, or merely statutory construction (interpreting criminal laws

to find that the legislature would not have intended to punish conduct induced by police agents).1100

1097 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, or informers may be used, which also has constitutional implications.

1098 For instance, in Sorrells v. United States, 287 U.S. 435, 446–49 (1932) and

Sherman v. United States, 356 U.S. 369, 380 (1958) government agents solicited defendants to engage in the illegal activity, in United States v. Russell, 411 U.S. 423,

490 (1973), the agents supplied a commonly available ingredient, and in Hampton

v. United States, 425 U.S. 484, 488–89 (1976), the agents supplied an essential and

difficult to obtain ingredient.

1099 For instance, this strategy was seen in the “Abscam” congressional bribery

controversy. The defense of entrapment was rejected as to all the “Abscam” defendants. E.g., United States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983); United States v.

Williams, 705 F.2d 603 (2d Cir. 1983); United States v. Jannotti, 673 F.2d 578 (3d

Cir. 1982), cert. denied, 457 U.S. 1106 (1982).

1100 For a thorough evaluation of the basis for and the nature of the entrapment defense, see Seidman, The Supreme Court, Entrapment, and Our Criminal Justice Dilemma, 1981 SUP. CT. REV. 111. The Court’s first discussion of the issue was

based on statutory grounds, see Sorrells v. United States, 287 U.S. 435, 446–49 (1932),

and that basis remains the choice of some Justices. Hampton v. United States, 425

U.S. 484, 488–89 (1976) (plurality opinion of Justices Rehnquist and White and Chief

Justice Burger). In Sherman v. United States, 356 U.S. 369, 380 (1958) (concurring), however, Justice Frankfurter based his opinion on the supervisory powers of

the courts. In United States v. Russell, 411 U.S. 423, 490 (1973), however, the Court

rejected the use of that power, as did a plurality in Hampton, 425 U.S. at 490. The

Hampton plurality thought the Due Process Clause would never be applicable, no

matter what conduct government agents engaged in, unless they violated some protected right of the defendant, and that inducement and encouragement could never

do that. Justices Powell and Blackmun, on the other hand, 411 U.S. at 491, thought

that police conduct, even in the case of a predisposed defendant, could be so outrageous as to violate due process. The Russell and Hampton dissenters did not clearly

differentiate between the supervisory power and due process but seemed to believe

that both were implicated. 411 U.S. at 495 (Justices Brennan, Stewart, and Marshall); Russell, 411 U.S. at 439 (Justices Stewart, Brennan, and Marshall). The Court

again failed to clarify the basis for the defense in Mathews v. United States, 485

U.S. 58 (1988) (a defendant in a federal criminal case who denies commission of the

crime is entitled to assert an “inconsistent” entrapment defense where the evidence

warrants), and in Jacobson v. United States, 503 U.S. 540 (1992) (invalidating a

2024 AMENDMENT 14—RIGHTS GUARANTEED
The Court has employed the so-called “subjective approach” in

evaluating the defense of entrapment.1101 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.” 1102 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.1103 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.” 1104

Criminal Identification Process.—In criminal trials, the reliability and weight to be accorded an eyewitness identification ordinarily are for the jury to decide, guided by instructions by the

trial judge and subject to judicial prerogatives under the rules of

evidence to exclude otherwise relevant evidence whose probative value

is substantially outweighed by its prejudicial impact or potential to

mislead. At times, however, a defendant alleges an out-of-court identification in the presence of police is so flawed that it is inadmisconviction under the Child Protection Act of 1984 because government solicitation

induced the defendant to purchase child pornography).

1101 An “objective approach,” although rejected by the Supreme Court, has been

advocated by some Justices and recommended for codification by Congress and the

state legislatures. See American Law Institute, MODEL PENAL CODE § 2.13 (Official Draft,

1962); NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, A PROPOSED NEW FEDERAL CRIMINAL CODE § 702(2) (Final Draft, 1971). The objective approach disregards

the defendant’s predisposition and looks to the inducements used by government agents.

If the government employed means of persuasion or inducement creating a substantial risk that the person tempted will engage in the conduct, the defense would be

available. Sorrells v. United States, 287 U.S. 435, 458–59 (1932) (separate opinion

of Justice Roberts); Sherman v. United States, 356 U.S. 369, 383 (1958) (Justice Frankfurter concurring); United States v. Russell, 411 U.S. 423, 441 (1973) (Justice Stewart dissenting); Hampton v. United States, 425 U.S. 484, 496–97 (1976) (Justice Brennan dissenting).

1102 Jacobson v. United States, 503 U.S. 540, 548–49 (1992). Here the Court held

that the government had failed to prove that the defendant was initially predisposed to purchase child pornography, even though he had become so predisposed

following solicitation through an undercover “sting” operation. For several years government agents had sent the defendant mailings soliciting his views on pornography and child pornography, and urging him to obtain materials in order to fight

censorship and stand up for individual rights.

1103 Sorrells v. United States, 287 U.S. 435, 451–52 (1932); Sherman v. United

States, 356 U.S. 369, 376–78 (1958); Masciale v. United States, 356 U.S. 386, 388

(1958); United States v. Russell, 411 U.S. 423, 432–36 (1973); Hampton v. United

States, 425 U.S. 484, 488–489 (1976) (plurality opinion), and id. at 491 (Justices

Powell and Blackmun concurring).

1104 Jacobson v. United States, 503 U.S. 540, 553–54 (1992).

AMENDMENT 14—RIGHTS GUARANTEED 2025
sible as a matter of fundamental justice under due process.1105 These

cases most commonly challenge such police-arranged procedures as

lineups, showups, photographic displays, and the like.1106 But not

all cases have alleged careful police orchestration.1107

The Court generally disfavors judicial suppression of eyewitness identifications on due process grounds in lieu of having identification testimony tested in the normal course of the adversarial

process.1108 Two elements are required for due process suppression.

First, law enforcement officers must have participated in an identification process that was both suggestive and unnecessary.1109 Second, the identification procedures must have created a substantial

prospect for misidentification. Determination of these elements is

made by examining the “totality of the circumstances” of a case.1110

The Court has not recognized any per se rule for excluding an eyewitness identification on due process grounds.1111 Defendants have

1105 A hearing by the trial judge on whether an eyewitness identification should

be barred from admission is not constitutionally required to be conducted out of the

presence of the jury. Watkins v. Sowders, 449 U.S. 341 (1981).

1106 E.g., Manson v. Brathwaite, 432 U.S. 98, 114–17 (1977) (only one photograph provided to witness); Neil v. Biggers, 409 U.S. 188, 196–201 (1972) (showup

in which police walked defendant past victim and ordered him to speak); Coleman

v. Alabama, 399 U.S. 1 (1970) (lineup); Foster v. California, 394 U.S. 440 (1969) (two

lineups, in one of which the suspect was sole participant above average height, and

arranged one-on-one meeting between eyewitness and suspect); Simmons v. United

States, 390 U.S. 377 (1968) (series of group photographs each of which contained

suspect); Stovall v. Denno, 388 U.S. 293 (1967) (suspect brought to witness’s hospital room).

1107 Perry v. New Hampshire, 565 U.S. ___, No. 10–8974, slip op. (2012) (prior

to being approached by police for questioning, witness by chance happened to see

suspect standing in parking lot near police officer; no manipulation by police alleged).

1108 See Perry v. New Hampshire, 565 U.S. ___, No. 10–8974, slip op. at 6–7,

15–17 (2012).

1109 “Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the

further reason that the increased chance of misidentification is gratuitous.” Neil v.

Biggers, 409 U.S. 188, 198 (1972). An identification process can be found to be suggestive regardless of police intent. Perry v. New Hampshire, 565 U.S. ___, No. 10–

8974, slip op. at 2 & n.1 (2012) (circumstances of identification found to be suggestive but not contrived; no due process relief). The necessity of using a particular

procedure depends on the circumstances. E.g., Stovall v. Denno, 388 U.S. 293 (1967)

(suspect brought handcuffed to sole witness’s hospital room where it was uncertain

whether witness would survive her wounds).

1110 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’s degree of attention, the accuracy of the witness’s

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).

1111 The Court eschewed a per se exclusionary rule in due process cases at least

as early as Stovall. 388 U.S. 293, 302 (1967). In Manson v. Brathwaite, the Court

2026 AMENDMENT 14—RIGHTS GUARANTEED
had difficulty meeting the Court’s standards: Only one challenge has

been successful.1112

Fair Trial.—As noted, the provisions of the Bill of Rights now

applicable to the states contain basic guarantees of a fair trial—

right to counsel, right to speedy and public trial, right to be free

from use of unlawfully seized evidence and unlawfully obtained confessions, and the like. But this does not exhaust the requirements

of fairness. “Due process of law requires that the proceedings shall

be fair, but fairness is a relative, not an absolute concept. . . . What

is fair in one set of circumstances may be an act of tyranny in others.” 1113 Conversely, “as applied to a criminal trial, denial of due

process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it

. . . [the Court] must find that the absence of that fairness fatally

infected the trial; the acts complained of must be of such quality as

necessarily prevents a fair trial.” 1114

For instance, bias or prejudice either inherent in the structure

of the trial system or as imposed by external events will deny one’s

right to a fair trial. Thus, in Tumey v. Ohio 1115 it was held to violate due process for a judge to receive compensation out of the fines

imposed on convicted defendants, and no compensation beyond his

salary) “if he does not convict those who are brought before him.”

Or, in other cases, the Court has found that contemptuous behavevaluated application of a per se rule versus the more flexible, ad hoc “totality of

the circumstances” rule, and found the latter to be preferable in the interests of

deterrence and the administration of justice. 432 U.S. 98, 111–14 (1977). The rule

in due process cases differs from the per se exclusionary rule adopted in the WadeGilbert line of cases on denial of the right to counsel under the Sixth Amendment in

post-indictment lineups. Cases refining the Wade-Gilbert holdings include Kirby v.

Illinois, 406 U.S. 682 (1972) (right to counsel inapplicable to post-arrest police station identification made before formal initiation of criminal proceedings; due process

protections remain available) and United States v. Ash, 413 U.S. 300 (1973) (right

to counsel inapplicable at post-indictment display of photographs to prosecution witnesses out of defendant’s presence; record insufficient to assess possible due process

claim).

1112 Foster v. California, 394 U.S. 440 (1969) (5–4) (“[T]he pretrial confrontations [between the witness and the defendant] clearly were so arranged as to make

the resulting identifications virtually inevitable.”). In a limited class of cases, pretrial identifications have been found to be constitutionally objectionable on a basis

other than due process. See discussion of Assistance of Counsel under Amend. VI,

“Lineups and Other Identification Situations.”

1113 Snyder v. Massachusetts, 291 U.S. 97, 116, 117 (1934). See also Buchalter v.

New York, 319 U.S. 427, 429 (1943).

1114 Lisenba v. California, 314 U.S. 219, 236 (1941).

1115 273 U.S. 510, 520 (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).

AMENDMENT 14—RIGHTS GUARANTEED 2027
ior in court may affect the impartiality of the presiding judge, so as

to disqualify such judge from citing and sentencing the contemnors.1116

Due process is also violated by the participation of a biased or otherwise partial juror, although there is no presumption that all jurors with a potential bias are in fact prejudiced.1117

Public hostility toward a defendant that intimidates a jury is,

or course, a classic due process violation.1118 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.1119 For instance, the impact

of televising trials on a jury has been a source of some concern.1120

1116 Mayberry v. Pennsylvania, 400 U.S. 455, 464 (1971) (“it is generally wise

where the marks of unseemly conduct have left personal stings [for a judge] to ask

a fellow judge to take his place”); Taylor v. Hayes, 418 U.S. 488, 503 (1974) (where

“marked personal feelings were present on both sides,” a different judge should preside over a contempt hearing). But see Ungar v. Sarafite, 376 U.S. 575 (1964) (“We

cannot assume that judges are so irascible and sensitive that they cannot fairly and

impartially deal with resistance to authority”). In the context of alleged contempt

before a judge acting as a one-man grand jury, the Court reversed criminal contempt convictions, saying: “A fair trial in a fair tribunal is a basic requirement of

due process. Fairness of course requires an absence of actual bias in the trial of

cases. But our system of law has always endeavored to prevent even the probability

of unfairness.” In re Murchison, 349 U.S. 133, 136 (1955).

1117 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. Smith

v. Phillips, 455 U.S. 209 (1982) (juror had job application pending with prosecutor’s

office during trial). See also Remmer v. United States, 347 U.S. 227 (1954) (bribe

offer to sitting juror); Dennis v. United States, 339 U.S. 162, 167–72 (1950) (government employees on jury). But, a trial judge’s refusal to question potential jurors about

the contents of news reports to which they had been exposed did not violate the

defendant’s right to due process, it being sufficient that the judge on voir dire asked

the jurors whether they could put aside what they had heard about the case, listen

to the evidence with an open mind, and render an impartial verdict. Mu’Min v. Virginia, 500 U.S. 415 (1991). Nor is it a denial of due process for the prosecution,

after a finding of guilt, to call the jury’s attention to the defendant’s prior criminal

record, if the jury has been given a sentencing function to increase the sentence

which would otherwise be given under a recidivist statute. Spencer v. Texas, 385

U.S. 554 (1967). For discussion of the requirements of jury impartiality about capital punishment, see discussion under Sixth Amendment, supra.

1118 Frank v. Mangum, 237 U.S. 309 (1915); Moore v. Dempsey, 261 U.S. 86 (1923).

1119 Sheppard v. Maxwell, 384 U.S. 333 (1966); Rideau v. Louisiana, 373 U.S.

723 (1963); Irvin v. Dowd, 366 U.S. 717 (1961); But see Stroble v. California, 343

U.S. 181 (1952); Murphy v. Florida, 421 U.S. 794 (1975).

1120 Initially, the televising of certain trials was struck down on the grounds that

the harmful potential effect on the jurors was substantial, that the testimony presented at trial may be distorted by the multifaceted influence of television upon the

conduct of witnesses, that the judge’s ability to preside over the trial and guarantee

fairness is considerably encumbered to the possible detriment of fairness, and that

the defendant is likely to be harassed by his television exposure. Estes v. Texas, 381

U.S. 532 (1965). Subsequently, however, in part because of improvements in technology which caused much less disruption of the trial process and in part because of

the lack of empirical data showing that the mere presence of the broadcast media

2028 AMENDMENT 14—RIGHTS GUARANTEED
The fairness of a particular rule of procedure may also be the

basis for due process claims, but such decisions must be based on

the totality of the circumstances surrounding such procedures.1121

For instance, a court may not restrict the basic due process right

to testify in one’s own defense by automatically excluding all hypnotically refreshed testimony.1122 Or, though a state may require a

defendant to give pretrial notice of an intention to rely on an alibi

defense and to furnish the names of supporting witnesses, due process requires reciprocal discovery in such circumstances, necessitating that the state give the defendant pretrial notice of its rebuttal

evidence on the alibi issue.1123 Due process is also violated when

the accused is compelled to stand trial before a jury while dressed

in the courtroom necessarily has an adverse effect on the process, the Court has

held that due process does not altogether preclude the televising of state criminal

trials. Chandler v. Florida, 449 U.S. 560 (1981). The decision was unanimous but

Justices Stewart and White concurred on the basis that Estes had established a per

se constitutional rule which had to be overruled, id. at 583, 586, contrary to the

Court’s position. Id. at 570–74.

1121 For instance, the presumption of innocence has been central to a number of

Supreme Court cases. 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, although the burden on the defendant is heavy to show that

an erroneous instruction or the failure to give a requested instruction tainted his

conviction. Taylor v. Kentucky, 436 U.S. 478 (1978). However, an instruction on the

presumption of innocence need not be given in every case. Kentucky v. Whorton,

441 U.S. 786 (1979) (reiterating that the totality of the circumstances must be looked

to in order to determine if failure to so instruct denied due process). The circumstances emphasized in Taylor included skeletal instructions on burden of proof combined with the prosecutor’s remarks in his opening and closing statements inviting

the jury to consider the defendant’s prior record and his indictment in the present

case as indicating guilt. See also Sandstrom v. Montana, 442 U.S. 510 (1979) (instructing jury trying person charged with “purposely or knowingly” causing victim’s

death that “law presumes that a person intends the ordinary consequences of his

voluntary acts” denied due process because jury could have treated the presumption

as conclusive or as shifting burden of persuasion and in either event state would

not have carried its burden of proving guilt). See also 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)); Middleton v. McNeil, 541

U.S. 433 (2004) (state courts could assume that an erroneous jury instruction was

not reasonably likely to have misled a jury where other instructions made correct

standard clear). Similarly, improper arguments by a prosecutor do not necessarily

constitute “plain error,” and a reviewing court may consider in the context of the

entire record of the trial the trial court’s failure to redress such error in the absence

of contemporaneous objection. United States v. Young, 470 U.S. 1 (1985).

1122 Rock v. Arkansas, 483 U.S. 44 (1987).

1123 Wardius v. Oregon, 412 U.S. 470 (1973).

AMENDMENT 14—RIGHTS GUARANTEED 2029
in identifiable prison clothes, because it may impair the presumption of innocence in the minds of the jurors.1124

The use of visible physical restraints, such as shackles, leg irons,

or belly chains, in front of a jury, has been held to raise due process concerns. In Deck v. Missouri,

1125 the Court noted a rule dating back to English common law against bringing a defendant to

trial in irons, and a modern day recognition that such measures

should be used “only in the presence of a special need.” 1126 The Court

found that the use of visible restraints during the guilt phase of a

trial undermines the presumption of innocence, limits the ability of

a defendant to consult with counsel, and “affronts the dignity and

decorum of judicial proceedings.” 1127 Even where guilt has already

been adjudicated, and a jury is considering the application of the

death penalty, the latter two considerations would preclude the routine use of visible restraints. Only in special circumstances, such

as where a judge has made particularized findings that security or

flight risk requires it, can such restraints be used.

The combination of otherwise acceptable rules of criminal trials may in some instances deny a defendant due process. Thus, based

on the particular circumstance of a case, two rules that (1) denied

a defendant the right to cross-examine his own witness in order to

elicit evidence exculpatory to the defendant 1128 and (2) denied a defendant the right to introduce the testimony of witnesses about matters told them out of court on the ground the testimony would be

hearsay, denied the defendant his constitutional right to present his

own defense in a meaningful way.1129 Similarly, a questionable procedure may be saved by its combination with another. Thus, it does

1124 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);

Carey v. Musladin, 549 U.S. 70 (2006) (effect on defendant’s fair-trial rights of privateactor courtroom conduct—in this case, members of victim’s family wearing buttons

with the victim’s photograph—has never been addressed by the Supreme Court and

therefore 18 U.S.C. § 2254(d)(1) precludes habeas relief; see Amendment 8, Limitations on Habeas Corpus Review of Capital Sentences).

1125 544 U.S. 622 (2005).

1126 544 U.S. at 626. In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Court

stated, in dictum, that “no person should be tried while shackled and gagged except

as a last resort.”

1127 544 U.S. at 630, 631 (internal quotation marks omitted).

1128 The defendant called the witness because the prosecution would not.

1129 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 voluntari2030 AMENDMENT 14—RIGHTS GUARANTEED
not deny a defendant due process to subject him initially to trial

before a non-lawyer police court judge when there is a later trial

de novo available under the state’s court system.1130

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.” 1131

The above-quoted language was dictum,1132 but the principle it

enunciated has required state officials to controvert allegations that

knowingly false testimony had been used to convict 1133 and has upset convictions found to have been so procured.1134 Extending the

ness of the confession); Holmes v. South Carolina, 547 U.S. 319 (2006) (overturning

rule that evidence of third-party guilt can be excluded if there is strong forensic

evidence establishing defendant’s culpability). But see Montana v. Egelhoff, 518 U.S.

37 (1996) (state may bar defendant from introducing evidence of intoxication to prove

lack of mens rea).

1130 North v. Russell, 427 U.S. 328 (1976).

1131 Mooney v. Holohan, 294 U.S. 103, 112 (1935).

1132 The Court dismissed the petitioner’s suit on the ground that adequate process existed in the state courts to correct any wrong and that petitioner had not

availed himself of it. A state court subsequently appraised the evidence and ruled

that the allegations had not been proved in Ex parte Mooney, 10 Cal. 2d 1, 73 P.2d

554 (1937), cert. denied, 305 U.S. 598 (1938).

1133 Pyle v. Kansas, 317 U.S. 213 (1942); White v. Ragen, 324 U.S. 760 (1945).

See also New York ex rel. Whitman v. Wilson, 318 U.S. 688 (1943); Ex parte Hawk,

321 U.S. 114 (1914). But see Hysler v. Florida, 315 U.S. 411 (1942); Lisenba v. California, 314 U.S. 219 (1941).

1134 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).

AMENDMENT 14—RIGHTS GUARANTEED 2031
principle, the Court in Miller v. Pate 1135 overturned a conviction obtained after the prosecution had represented to the jury that a pair

of men’s shorts found near the scene of a sex attack belonged to

the defendant and that they were stained with blood; the defendant showed in a habeas corpus proceeding that no evidence connected him with the shorts and furthermore that the shorts were

not in fact bloodstained, and that the prosecution had known these

facts.

This line of reasoning has even resulted in the disclosure to the

defense of information not relied upon by the prosecution during

trial.1136 In Brady v. Maryland,

1137 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.1138 “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.” 1139

1135 386 U.S. 1 (1967).

1136 The Constitution does not require the government, prior to entering into a

binding plea agreement with a criminal defendant, to disclose impeachment information relating to any informants or other witnesses against the defendant. United

States v. Ruiz, 536 U.S. 622 (2002). Nor has it been settled whether inconsistent

prosecutorial theories in separate cases can be the basis for a due process challenge. Bradshaw v. Stumpf, 545 U.S. 175 (2005) (Court remanded case to determine

whether death sentence was based on defendant’s role as shooter because subsequent prosecution against an accomplice proceeded on the theory that, based on new

evidence, the accomplice had done the shooting).

1137 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.

1138 Although the state court in Brady had allowed a partial retrial so that the

accomplice’s confession could be considered in the jury’s determination of whether

to impose capital punishment, it had declined to order a retrial of the guilt phase of

the trial. The defendant’s appeal of this latter decision was rejected, as the issue, as

the Court saw it, was whether the state court could have excluded the defendant’s

confessed participation in the crime on evidentiary grounds, as the defendant had

confessed to facts sufficient to establish grounds for the crime charged.

1139 Moore v. Illinois, 408 U.S. 786, 794–95 (1972) (finding Brady inapplicable

because the evidence withheld was not material and not exculpatory). See also Wood

2032 AMENDMENT 14—RIGHTS GUARANTEED
In United States v. Agurs,

1140 the Court summarized and somewhat expanded the prosecutor’s obligation to disclose to the defense exculpatory evidence in his possession, even in the absence of

a request, or upon a general request, by defendant. First, as noted,

if the prosecutor knew or should have known that testimony given

to the trial was perjured, the conviction must be set aside if there

is any reasonable likelihood that the false testimony could have affected the judgment of the jury.1141 Second, as established in Brady,

if the defense specifically requested certain evidence and the prosecutor withheld it,1142 the conviction must be set aside if the suppressed evidence might have affected the outcome of the trial.1143

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. Under this third prong,

if the prosecutor did not reveal the relevant information, reversal

of a conviction may be required, but only if the undisclosed evidence creates a reasonable doubt as to the defendant’s guilt.1144

This tripartite formulation, however, suffered from two apparent defects. First, it added a new level of complexity to a Brady

inquiry by requiring a reviewing court to establish the appropriate

v. Bartholomew, 516 U.S. 1 (1995) (per curiam) (holding no due process violation

where prosecutor’s failure to disclose the result of a witness’ polygraph test would

not have affected the outcome of the case). The beginning in Brady toward a general requirement of criminal discovery was not carried forward. See the division of

opinion in Giles v. Maryland, 386 U.S. 66 (1967).

In Cone v. Bell, 556 U.S. ___, No. 07–1114, slip op. at 23, 27 (2009), the Court

emphasized the distinction between the materiality of the evidence with respect to

guilt and the materiality of the evidence with respect to punishment, and concluded

that, although the evidence that had been suppressed was not material to the defendant’s conviction, the lower courts had erred in failing to assess its effect with respect to the defendant’s capital sentence.

1140 427 U.S. 97 (1976).

1141 427 U.S. at 103–04. This situation is the Mooney v. Holohan-type of case.

1142 A statement by the prosecution that it will “open its files” to the defendant

appears to relieve the defendant of his obligation to request such materials. See Strickler

v. Greene, 527 U.S. 263, 283–84 (1999); Banks v. Dretke, 540 U.S. 668, 693 (2004).

1143 427 U.S. at 104–06. This the Brady situation.

1144 427 U.S. at 106–14. This was the Agurs fact situation. Similarly, there is no

obligation that law enforcement officials preserve breath samples that have been used

in a breath-analysis test; to meet the Agurs materiality standard, “evidence must

both possess an exculpatory value that was apparent before the evidence was destroyed, and be 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); Illinois v. Fisher, 540 U.S. 544 (2004) (per

curiam) (the routine destruction of a bag of cocaine 11 years after an arrest, the

defendant having fled prosecution during the intervening years, does not violate due

process).

AMENDMENT 14—RIGHTS GUARANTEED 2033
level of materiality by classifying the situation under which the exculpating information was withheld. Second, it was not clear, if the

fairness of the trial was at issue, why the circumstances of the failure to disclose should affect the evaluation of the impact that such

information would have had on the trial. Ultimately, the Court addressed these issues in United States v. Bagley 1145

.

In Bagley, the Court established a uniform test for materiality,

choosing the most stringent requirement that evidence is material

if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been

different.1146 This materiality standard, found in contexts outside

of Brady inquiries,1147 is applied not only to exculpatory material,

but also to material that would be relevant to the impeachment of

witnesses.1148 Thus, where inconsistent earlier statements by a witness to an abduction were not disclosed, the Court weighed the specific effect that impeachment of the witness would have had on establishing the required elements of the crime and of the punishment,

finally concluding that there was no reasonable probability that the

jury would have reached a different result.1149

The Supreme Court has also held that “Brady suppression occurs when the government fails to turn over even evidence that is

‘known only to police investigators and not to the prosecutor.’ . . .

‘[T]he individual prosecutor has a duty to learn of any favorable

1145 473 U.S. 667 (1985).

1146 473 U.S. at 682. Or, to phrase it differently, a Brady violation is established

by showing that the favorable evidence could reasonably be taken to put the whole

case in such a different light as to undermine confidence in the verdict. Kyles v.

Whitley, 514 U.S. 419, 435 (1995). Accord Smith v. Cain, 565 U.S. ___, No. 10–8145,

slip op. (2012) (prior inconsistent statements of sole eyewitness withheld from defendant; state lacked other evidence sufficient to sustain confidence in the verdict independently).

1147 See United States v. Malenzuela-Bernal, 458 U.S. 858 (1982) (testimony made

unavailable by Government deportation of witnesses); Strickland v. Washington, 466

U.S. 668 (1984) (incompetence of counsel).

1148 473 U.S. at 676–77. See also Wearry v. Cain, 577 U.S. ___, No. 14–10008,

slip op. at 9 (2016) (per curiam) (finding that a state post-conviction court had improperly (1) evaluated the materiality of each piece of evidence in isolation, rather

than cumulatively; (2) emphasized reasons jurors might disregard the new evidence, while ignoring reasons why they might not; and (3) failed to consider the

statements of two impeaching witnesses).

1149 Strickler v. Greene, 527 U.S. 263 (1999). But see Banks v. Dretke, 540 U.S.

668, 692–94 (2004) (failure of prosecution to correct perjured statement that witness had not been coached and to disclose that separate witness was a paid government informant established prejudice for purposes of habeas corpus review); Smith

v. Cain, 565 U.S. ___, No. 10–8145, slip op. (2012) (prior inconsistent statements of

sole eyewitness withheld from defendant; state lacked other evidence sufficient to

sustain confidence in the verdict independently).

2034 AMENDMENT 14—RIGHTS GUARANTEED
evidence known to others acting on the government’s behalf in the

case, including the police.’ ” 1150

Proof, Burden of Proof, and Presumptions.—It had long been

presumed that “reasonable doubt” was the proper standard for criminal cases,1151 but, because the standard was so widely accepted, it

was only relatively recently that the Court had the opportunity to

pronounce it guaranteed by due process. In 1970, the Court held in

In re Winship that 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.” 1152

The standard is closely related to the presumption of innocence, which helps to ensure a defendant a fair trial,1153 and requires that a jury consider a case solely on the evidence.1154 “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.’ ” 1155

1150 Youngblood v. West Virginia, 547 U.S. 867, 869–70 (2006) (per curiam), quoting Kyles v. Whitley, 514 U.S. 419, 438, 437 (1995).

1151 Miles v. United States, 103 U.S. 304, 312 (1881); Davis v. United States,

160 U.S. 469, 488 (1895); Holt v. United States, 218 U.S. 245, 253 (1910); Speiser v.

Randall, 357 U.S. 513, 525–26 (1958).

1152 In re Winship, 397 U.S. 358, 364 (1970). See Estelle v. Williams, 425 U.S.

501, 503 (1976); Henderson v. Kibbe, 431 U.S. 145, 153 (1977); Ulster County Court

v. Allen, 442 U.S. 140, 156 (1979); Sandstrom v. Montana, 442 U.S. 510, 520–24 (1979).

See also Sullivan v. Louisiana, 508 U.S. 275 (1993) (Sixth Amendment guarantee of

trial by jury requires a jury verdict of guilty beyond a reasonable doubt). On the

interrelationship of the reasonable doubt burden and defendant’s entitlement to a

presumption of innocence, see Taylor v. Kentucky, 436 U.S. 478, 483–86 (1978), and

Kentucky v. Whorton, 441 U.S. 786 (1979).

1153 E.g., Deutch v. United States, 367 U.S. 456, 471 (1961). See also Cage v.

Louisiana, 498 U.S. 39 (1990) (per curiam) (jury instruction that explains “reasonable doubt” as doubt that would give rise to a “grave uncertainty,” as equivalent to

a “substantial doubt,” and as requiring “a moral certainty,” suggests a higher degree of certainty than is required for acquittal, and therefore violates the Due Process Clause). But see Victor v. Nebraska, 511 U.S. 1 (1994) (considered as a whole,

jury instructions that define “reasonable doubt” as requiring a “moral certainty” or

as equivalent to “substantial doubt” did not violate due process because other clarifying language was included.)

1154 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.

1155 397 U.S. at 363 (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)).

Justice Harlan’s Winship concurrence, id. at 368, proceeded on the basis that, because there is likelihood of error in any system of reconstructing past events, the

AMENDMENT 14—RIGHTS GUARANTEED 2035
The Court had long held that, under the Due Process Clause, it

would set aside convictions that are supported by no evidence at

all.1156 The holding of the Winship case, however, left open the question as to whether appellate courts should weigh the sufficiency of

trial evidence. Thus, in Jackson v. Virginia,

1157 the Court held that

federal courts, on direct appeal of federal convictions or collateral

review of state convictions, must satisfy themselves that the evidence on the record 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.1158

Because due process requires the prosecution to prove beyond

a reasonable doubt every fact necessary to constitute the crime

charged,1159 the Court held in Mullaney v. Wilbur 1160 that it was

unconstitutional to require a defendant charged with murder to prove

that he acted “in the heat of passion on sudden provocation” in order to reduce the homicide to manslaughter. The Court indicated

that a balancing-of-interests test should be used to determine when

the Due Process Clause required the prosecution to carry the burden of proof and when some part of the burden might be shifted to

the defendant. The decision, however, called into question the pracerror of convicting the innocent should be reduced to the greatest extent possible

through the use of the reasonable doubt standard.

1156 Thompson v. City of Louisville, 362 U.S. 199 (1960); Garner v. Louisiana,

368 U.S. 157 (1961); Taylor v. Louisiana, 370 U.S. 154 (1962); Barr v. City of Columbia, 378 U.S. 146 (1964); Johnson v. Florida, 391 U.S. 596 (1968). See also Chessman v. Teets, 354 U.S. 156 (1957).

1157 443 U.S. 307 (1979).

1158 Id. at 316, 18–19. See also Musacchio v. United States, 577 U.S. ___, No.

14–1095, slip op. (2016) (“When a jury finds guilt after being instructed on all elements of the charged crime plus one more element,” the fact that the government

did not introduce evidence of the additional element—which was not required to prove

the offense, but was included in the erroneous jury instruction—“does not implicate

the principles that sufficiency review protects.”); Griffin v. United States, 502 U.S.

46 (1991) (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

conviction, but is adequate to support conviction as to another object).

1159 Bunkley v. Florida, 538 U.S. 835 (2003); Fiore v. White, 528 U.S. 23 (1999).

These cases both involved defendants convicted under state statutes that were subsequently interpreted in a way that would have precluded their conviction. The Court

remanded the cases to determine if the new interpretation was in effect at the time

of the previous convictions, in which case those convictions would violate due process.

1160 421 U.S. 684 (1975). See also Sandstrom v. Montana, 442 U.S. 510, 520–24

(1979).

2036 AMENDMENT 14—RIGHTS GUARANTEED
tice in many states under which some burdens of persuasion1161 were

borne by the defense, and raised the prospect that the prosecution

must bear all burdens of persuasion—a significant and weighty task

given the large numbers of affirmative defenses.

The Court, however, summarily rejected the argument that Mullaney means that the prosecution must negate an insanity defense,1162 and, later, in Patterson v. New York,

1163 upheld a state

statute that required a defendant asserting “extreme emotional disturbance” as an affirmative defense to murder 1164 to prove such by

a preponderance of the evidence. According to the Court, the constitutional deficiency in Mullaney was that the statute made malice

an element of the offense, permitted malice to be presumed upon

proof of the other elements, and then required the defendant to prove

the absence of malice. In Patterson, by contrast, the statute obligated the state to prove each element of the offense (the death, the

intent to kill, and the causation) beyond a reasonable doubt, while

allowing the defendant to prove an affirmative defense by preponderance of the evidence that would reduce the degree of the offense.1165 This distinction has been criticized as formalistic, as the

legislature can shift burdens of persuasion between prosecution and

defense easily through the statutory definitions of the offenses.1166

1161 The general notion of “burden of proof” can be divided into the “burden of

production” (providing probative evidence on a particular issue) and a “burden of

persuasion” (persuading the factfinder with respect to an issue by a standard such

as proof beyond a reasonable doubt). Mullaney, 421 U.S. at 695 n.20.

1162 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.

1163 432 U.S. 197 (1977).

1164 Proving the defense would reduce a murder offense to manslaughter.

1165 The decisive issue, then, was whether the statute required the state to prove

beyond a reasonable doubt each element of the offense. See also Dixon v. United

States, 548 U.S. 1 (2006) (requiring defendant in a federal firearms case to prove

her duress defense by a preponderance of evidence did not violate due process). In

Dixon, the prosecution had the burden of proving all elements of two federal firearms violations, one requiring a “willful” violation (having knowledge of the facts

that constitute the offense) and the other requiring a “knowing” violation (acting

with knowledge that the conduct was unlawful). Although establishing other forms

of mens rea (such as “malicious intent”) might require that a prosecutor prove that

a defendant’s intent was without justification or excuse, the Court held that neither

of the forms of mens rea at issue in Dixon contained such a requirement. Consequently, the burden of establishing the defense of duress could be placed on the defendant without violating due process.

1166 Dissenting in Patterson, Justice Powell argued that the two statutes were

functional equivalents that should be treated alike constitutionally. He would hold

AMENDMENT 14—RIGHTS GUARANTEED 2037
Despite the requirement that states prove each element of a criminal offense, criminal trials generally proceed with a presumption

that the defendant is sane, and a defendant may be limited in the

evidence that he may present to challenge this presumption. In Clark

v. Arizona,

1167 the Court considered a rule adopted by the Supreme

Court of Arizona that prohibited the use of expert testimony regarding mental disease or mental capacity to show lack of mens rea,

ruling that the use of such evidence could be limited to an insanity

defense. In Clark, the Court weighed competing interests to hold

that such evidence could be “channeled” to the issue of insanity due

to the controversial character of some categories of mental disease,

the potential of mental-disease evidence to mislead, and the danger of according greater certainty to such evidence than experts claim

for it.1168

Another important distinction that can substantially affect a prosecutor’s burden is whether a fact to be established is an element of

a crime or instead is a sentencing factor. Although a criminal conviction is generally established by a jury using the “beyond a reasonable doubt” standard, sentencing factors are generally evaluated by a judge using few evidentiary rules and under the more

lenient “preponderance of the evidence” standard. The Court has

taken a formalistic approach to this issue, allowing states to designate essentially which facts fall under which of these two categories. For instance, the Court has held that whether a defendant “visibly possessed a gun” during a crime may be designated by a state

as a sentencing factor, and determined by a judge based on the preponderance of evidence.1169

Although the Court has generally deferred to the legislature’s

characterizations in this area, it limited this principle in Apprendi

v. New Jersey. In Apprendi the Court held that a sentencing factor

cannot be used to increase the maximum penalty imposed for the

that as to those facts that historically have made a substantial difference in the

punishment and stigma flowing from a criminal act the state always bears the burden of persuasion but that new affirmative defenses may be created and the burden

of establishing them placed on the defendant. 432 U.S. at 216. Patterson was followed in Martin v. Ohio, 480 U.S. 228 (1987) (state need not disprove defendant

acted in self-defense based on honest belief she was in imminent danger, when offense is aggravated murder, an element of which is “prior calculation and design”).

Justice Powell, again dissenting, urged a distinction between defenses that negate

an element of the crime and those that do not. Id. at 236, 240.

1167 548 U.S. 735 (2006).

1168 548 U.S. at 770, 774.

1169 McMillan v. Pennsylvania, 477 U.S. 79 (1986). It should be noted that these

type of cases may also implicate the Sixth Amendment, as the right to a jury extends to all facts establishing the elements of a crime, while sentencing factors may

be evaluated by a judge. See discussion in “Criminal Proceedings to Which the Guarantee Applies,” supra.

2038 AMENDMENT 14—RIGHTS GUARANTEED
underlying crime.1170 This led, in turn, to the Court’s overruling conflicting prior case law that had held constitutional the use of aggravating sentencing factors by judges when imposing capital punishment.1171 These holdings are subject to at least one exception,

however,1172 and the decisions might be evaded by legislatures revising criminal provisions to increase maximum penalties, and then

providing for mitigating factors within the newly established sentencing range.

Another closely related issue is statutory presumptions, where

proof of a “presumed fact” that is a required element of a crime, is

established by another fact, the “basic fact.” 1173 In Tot v. United

States,

1174 the Court held that a statutory presumption was valid

under the Due Process Clause only if it met a “rational connection”

test. In that case, the Court struck down a presumption that a person possessing an illegal firearm had shipped, transported, or received such in interstate commerce. “Under our decisions, a statutory presumption cannot be sustained if there be no rational connection

between the fact proved and the ultimate fact presumed, if the inference of the one from the proof of the other is arbitrary because

of lack of connection between the two in common experience.”

1170 530 U.S. 466, 490 (2000) (interpreting New Jersey’s “hate crime” law). It

should be noted that, prior to its decision in Apprendi, the Court had held that sentencing factors determinative of minimum sentences could be decided by a judge.

McMillan v. Pennsylvania, 477 U.S. 79 (1986). Although the vitality of McMillan

was put in doubt by Apprendi, McMillan was subsequently reaffirmed in Harris v.

United States, 536 U.S. 545 (2002).

1171 Walton v. Arizona, 497 U.S. 639 (1990), overruled by Ring v. Arizona, 536

U.S. 584 (2002).

1172 This limiting principle does not apply to sentencing enhancements based on

recidivism. Apprendi, 530 U.S. at 490. As enhancement of sentences for repeat offenders is traditionally considered a part of sentencing, establishing the existence of

previous valid convictions may be made by a judge, despite its resulting in a significant increase in the maximum sentence available. Almendarez-Torres v. United States,

523 U.S. 224 (1998) (deported alien reentering the United States subject to a maximum sentence of two years, but upon proof of felony record, is subject to a maximum of twenty years). See also Parke v. Raley, 506 U.S. 20 (1992) (where prosecutor has burden of establishing a prior conviction, a defendant can be required to

bear the burden of challenging the validity of such a conviction).

1173 See, e.g., Yee Hem v. United States, 268 U.S. 178 (1925) (upholding statute

that proscribed possession of smoking opium that had been illegally imported and

authorized jury to presume illegal importation from fact of possession); Manley v.

Georgia, 279 U.S. 1 (1929) (invalidating statutory presumption that every insolvency of a bank shall be deemed fraudulent).

1174 319 U.S. 463, 467–68 (1943). Compare United States v. Gainey, 380 U.S. 63

(1965) (upholding presumption from presence at site of illegal still that defendant

was “carrying on” or aiding in “carrying on” its operation), with United States v.

Romano, 382 U.S. 136 (1965) (voiding presumption from presence at site of illegal

still that defendant had possession, custody, or control of still).

AMENDMENT 14—RIGHTS GUARANTEED 2039
In Leary v. United States,

1175 this due process test was stiffened to require that, for such a “rational connection” to exist, it must

“at least be said with substantial assurance that the presumed fact

is more likely than not to flow from the proved fact on which it is

made to depend.” Thus, the Court voided a provision that permitted a jury to infer from a defendant’s possession of marijuana his

knowledge of its illegal importation. A lengthy canvass of factual

materials established to the Court’s satisfaction that, although the

greater part of marijuana consumed in the United States is of foreign origin, there was still a good amount produced domestically

and there was no way to assure that the majority of those possessing marijuana have any reason to know whether their marijuana

is imported.1176 The Court left open the question whether a presumption that survived the “rational connection” test “must also satisfy

the criminal ‘reasonable doubt’ standard if proof of the crime charged

or an essential element thereof depends upon its use.” 1177

In a later 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.” 1178 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 reasonabledoubt 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. As long as it is clear

that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test described in Leary.” 1179

Thus, due process was not violated by the application of the stat1175 395 U.S. 6, 36 (1969).

1176 395 U.S. at 37–54. Although some of the reasoning in Yee Hem, supra, was

disapproved, it was factually distinguished as involving users of “hard” narcotics.

1177 395 U.S. at 36 n.64. The matter was also left open in Turner v. United States,

396 U.S. 398 (1970) (judged by either “rational connection” or “reasonable doubt,” a

presumption that the possessor of heroin knew it was illegally imported was valid,

but the same presumption with regard to cocaine was invalid under the “rational

connection” test because a great deal of the substance was produced domestically),

and in Barnes v. United States, 412 U.S. 837 (1973) (under either test a presumption that possession of recently stolen property, if not satisfactorily explained, is grounds

for inferring possessor knew it was stolen satisfies due process).

1178 Ulster County Court v. Allen, 442 U.S. 140, 167 (1979).

1179 442 U.S. at 167.

2040 AMENDMENT 14—RIGHTS GUARANTEED
ute that provides that “the presence of a firearm in an automobile

is presumptive evidence of its illegal possession by all persons then

occupying the vehicle.” 1180 The division of the Court in these cases

and in the Mullaney v. Wilbur line of cases clearly shows the unsettled nature of the issues they concern.

The Problem of the Incompetent or Insane Defendant.—It

is a denial of due process to try or sentence a defendant who is

insane or incompetent to stand trial.1181 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.1182 Although there is no constitutional requirement that the state assume the burden of proving a defendant competent, the state must provide the defendant with a chance to prove

that he is incompetent to stand trial. Thus, a statutory presumption that a criminal defendant is competent to stand trial or a requirement that the defendant bear the burden of proving incompetence by a preponderance of the evidence does not violate due

process.1183

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 he will not, then the state

1180 442 U.S. at 142. The majority thought that possession was more likely than

not the case from the circumstances, while the four dissenters disagreed. 442 U.S.

at 168. See also Estelle v. McGuire, 502 U.S. 62 (1991) (upholding a jury instruction

that, to dissenting Justices O’Connor and Stevens, id. at 75, seemed to direct the

jury to draw the inference that evidence that a child had been “battered” in the

past meant that the defendant, the child’s father, had necessarily done the battering).

1181 Pate v. Robinson, 383 U.S. 375, 378 (1966) (citing Bishop v. United States,

350 U.S. 961 (1956)). The standard for competency to stand trial is whether the

defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as

factual understanding of the proceedings against him.” Dusky v. United States, 362

U.S. 402 (1960) (per curiam), cited with approval in Indiana v. Edwards, 128 S. Ct.

2379, 2383 (2008). The fact that a defendant is mentally competent to stand trial

does not preclude a court from finding him not mentally competent to represent himself at trial. Indiana v. Edwards, supra.

1182 Pate v. Robinson, 383 U.S. 375, 378 (1966). For treatment of the circumstances when a trial court should inquire into the mental competency of the defendant, see Drope v. Missouri, 420 U.S. 162 (1975). Also, an indigent who makes a

preliminary showing that his sanity at the time of his offense will be a substantial

factor in his trial is entitled to a court-appointed psychiatrist to assist in presenting

the defense. Ake v. Oklahoma, 470 U.S. 68 (1985).

1183 Medina v. California, 505 U.S. 437 (1992). It is a violation of due process,

however, for a state to require that a defendant must prove competence to stand

trial by clear and convincing evidence. Cooper v. Oklahoma, 517 U.S. 348 (1996).

AMENDMENT 14—RIGHTS GUARANTEED 2041
must either release the defendant or institute the customary civil

commitment proceeding that would be required to commit any other

citizen.1184

Where a defendant is found competent to stand trial, a state

appears to have significant discretion in how it takes account of mental illness or defect at the time of the offense in determining criminal responsibility.1185 The Court has identified several tests that are

used by states in varying combinations to address the issue: the

M’Naghten test (cognitive incapacity or moral incapacity),1186 volitional incapacity,1187 and the irresistible-impulse test.1188 “[I]t is clear

that no particular formulation has evolved into a baseline for due

process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice.” 1189

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.1190 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.” 1191 Thus, the

insanity-defense acquittee may be confined for treatment “until such

time as he has regained his sanity or is no longer a danger to him1184 Jackson v. Indiana, 406 U.S. 715 (1972).

1185 Clark v. Arizona, 548 U.S. 735 (2006).

1186 M’Naghten’s Case, 8 Eng. Rep. 718 (1843), states that “[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the

committing of the act, the party accused was laboring under such a defect of reason,

from disease of the mind, as not to know the nature and quality of the act he was

doing; or, if he did know it, that he did not know he was doing what was wrong.” 8

Eng. Rep., at 722.

1187 See Queen v. Oxford, 173 Eng. Rep. 941, 950 (1840) (“If some controlling

disease was, in truth, the acting power within [the defendant] which he could not

resist, then he will not be responsible”).

1188 See State v. Jones, 50 N.H. 369 (1871) (“If the defendant had a mental disease which irresistibly impelled him to kill his wife—if the killing was the product

of mental disease in him—he is not guilty; he is innocent—as innocent as if the act

had been produced by involuntary intoxication, or by another person using his hand

against his utmost resistance”).

1189 Clark, 548 U.S. at 752. In Clark, the Court considered an Arizona statute,

based on the M’Naghten case, that was amended to eliminate the defense of cognitive incapacity. The Court noted that, despite the amendment, proof of cognitive incapacity could still be introduced as it would be relevant (and sufficient) to prove

the remaining moral incapacity test. Id. at 753.

1190 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.

1191 463 U.S. at 368.

2042 AMENDMENT 14—RIGHTS GUARANTEED
self or society.” 1192 It follows, however, that a state may not indefinitely confine an insanity-defense acquittee who is no longer mentally ill but who has an untreatable personality disorder that may

lead to criminal conduct.1193

The Court held in Ford v. Wainwright that the Eighth Amendment prohibits the state from executing a person who is insane, and

that properly raised issues of pre-execution sanity must be determined in a proceeding that satisfies the requirements of due process.1194 Due process is 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.1195 The Court, however, left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon

its execution of sentences.” 1196

In Atkins v. Virginia, the Court held that the Eighth Amendment also prohibits the state from executing a person who is mentally retarded, and added, “As was our approach in Ford v. Wainwright with regard to insanity, ‘we leave to the State[s] the task of

developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’ ” 1197

Issues of substantive due process may arise if the government

seeks to compel the medication of a person found to be incompetent to stand trial. In Washington v. Harper,

1198 the Court had found

that an individual has a significant “liberty interest” in avoiding

1192 463 U.S. at 370.

1193 Foucha v. Louisiana, 504 U.S. 71 (1992).

1194 477 U.S. 399 (1986).

1195 There was no opinion of the Court on the issue of procedural requirements.

Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, would hold

that “the ascertainment of a prisoner’s sanity calls for no less stringent standards

than those demanded in any other aspect of a capital proceeding.” 477 U.S. at 411–

12. Concurring Justice Powell thought that due process might be met by a proceeding “far less formal than a trial,” that the state “should provide an impartial officer

or board that can receive evidence and argument from the prisoner’s counsel.” Id. at

427. Concurring Justice O’Connor, joined by Justice White, emphasized Florida’s denial of the opportunity to be heard, and did not express an opinion on whether the

state could designate the governor as decisionmaker. Thus Justice Powell’s opinion,

requiring the opportunity to be heard before an impartial officer or board, sets forth

the Court’s holding.

1196 477 U.S. at 416–17.

1197 536 U.S. at 317 (citation omitted), quoting Ford v. Wainwright, 477 U.S. 399,

416–17 (1986). The Court quoted this language again in Schriro v. Smith, holding

that “[t]he Ninth Circuit erred in commanding the Arizona courts to conduct a jury

trial to resolve Smith’s mental retardation claim.” 546 U.S. 6, 7 (2005) (per curiam).

States, the Court added, are entitled to “adopt[ ] their own measures for adjudicating claims of mental retardation,” though “those measures might, in their application, be subject to constitutional challenge.” Id.

1198 494 U.S. 210 (1990) (prison inmate could be drugged against his will if he

presented a risk of serious harm to himself or others).

AMENDMENT 14—RIGHTS GUARANTEED 2043
the unwanted administration of antipsychotic drugs. In Sell v. United

States,

1199 the Court found that this liberty interest could in “rare”

instances be outweighed by the government’s interest in bringing

an incompetent individual to trial. First, however, the government

must engage in a fact-specific inquiry as to whether this interest is

important in a particular case.1200 Second, the court must find that

the treatment is likely to render the defendant competent to stand

trial without resulting in side effects that will interfere with the

defendant’s ability to assist counsel. Third, the court must find that

less intrusive treatments are unlikely to achieve substantially the

same results. Finally, the court must conclude that administration

of the drugs is in the patient’s best medical interests.

Guilty Pleas.—A defendant may plead guilty instead of insisting that the prosecution prove him guilty. Often the defendant does

so as part of a “plea bargain” with the prosecution, where the defendant is guaranteed a light sentence or is allowed to plead to a

lesser offense.1201 Although the government may not structure its

system so as to coerce a guilty plea,1202 a guilty plea that is entered voluntarily, knowingly, and understandingly, even to obtain

an advantage, is sufficient to overcome constitutional objections.1203 The guilty plea and the often concomitant plea bargain

are important and necessary components of the criminal justice system,1204 and it is permissible for a prosecutor during such plea bargains to require a defendant to forgo his right to a trial in return

for escaping additional charges that are likely upon conviction to

1199 539 U.S. 166 (2003).

1200 For instance, if the defendant is likely to remain civilly committed absent

medication, this would diminish the government’s interest in prosecution. 539 U.S.

at 180.

1201 There are a number of other reasons why a defendant may be willing to

plead guilty. There may be overwhelming evidence against him or his sentence after

trial will be more severe than if he pleads guilty.

1202 United States v. Jackson, 390 U.S. 570 (1968).

1203 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).

1204 Blackledge v. Allison, 431 U.S. 63, 71 (1977).

2044 AMENDMENT 14—RIGHTS GUARANTEED
result in a more severe penalty.1205 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.1206

In accepting a guilty plea, the court must inquire whether the

defendant is pleading voluntarily, knowingly, and understandingly,1207 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.” 1208

1205 Bordenkircher v. Hayes, 434 U.S. 357 (1978). Charged with forgery, Hayes

was informed during plea negotiations that if he would plead guilty the prosecutor

would recommend a five-year sentence; if he did not plead guilty, the prosecutor would

also seek an indictment under the habitual criminal statute under which Hayes,

because of two prior felony convictions, would receive a mandatory life sentence if

convicted. Hayes refused to plead, was reindicted, and upon conviction was sentenced to life. Four Justices dissented, id. at 365, 368, contending that the Court

had watered down North Carolina v. Pearce, 395 U.S. 711 (1969). See also United

States v. Goodwin, 457 U.S. 368 (1982) (after defendant was charged with a misdemeanor, refused to plead guilty and sought a jury trial in district court, the government obtained a four-count felony indictment and conviction).

1206 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 post-trial conduct, in which vindictiveness is more likely and is not

permitted. Accord, Thigpen v. Roberts, 468 U.S. 27 (1984). The distinction appears

to represent very fine line-drawing, but it appears to be one the Court is committed

to.

1207 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. However,

this does not mean that a court accepting a guilty plea must explain all the elements of a crime, as it may rely on counsel’s representations to the defendant. Bradshaw

v. Stumpf, 545 U.S. 175 (2005) (where defendant maintained that shooting was done

by someone else, guilty plea to aggravated manslaughter was still valid, as such

charge did not require defendant to be the shooter). See also Blackledge v. Allison,

431 U.S. 63 (1977) (defendant may collaterally challenge guilty plea where defendant had been told not to allude to existence of a plea bargain in court, and such

plea bargain was not honored).

1208 Santobello v. New York, 404 U.S. 257, 262 (1971). Defendant and a prosecutor reached agreement on a guilty plea in return for no sentence recommendation

AMENDMENT 14—RIGHTS GUARANTEED 2045
Sentencing.—In the absence of errors by the sentencing judge,1209

or of sentencing jurors considering invalid factors,1210 the significance of procedural due process at sentencing is limited.1211 In Williams v. New York,

1212 the Court upheld the imposition of the death

penalty, despite a jury’s recommendation of mercy, where the judge

acted based on information in a presentence report not shown to

the defendant or his counsel. The Court viewed as highly undesirable the restriction of judicial discretion in sentencing by requiring

adherence to rules of evidence which would exclude highly relevant

and informative material. Further, disclosure of such information

to the defense could well dry up sources who feared retribution or

embarrassment. Thus, hearsay and rumors can be considered in sentencing. In Gardner v. Florida,

1213 however, the Court limited the

application of Williams to capital cases.1214

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).

1209 In Townsend v. Burke, 334 U.S. 736, 740–41 (1948) the Court overturned a

sentence imposed on an uncounseled defendant by a judge who in reciting defendant’s record from the bench made several errors and facetious comments. “[W]hile

disadvantaged by lack of counsel, this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result,

whether caused by carelessness or design, is inconsistent with due process of law,

and such a conviction cannot stand.”

1210 In Hicks v. Oklahoma, 447 U.S. 343 (1980), the jury had been charged in

accordance with a habitual offender statute that if it found defendant guilty of the

offense charged, which would be a third felony conviction, it should assess punishment at 40 years imprisonment. The jury convicted and gave defendant 40 years.

Subsequently, in another case, the habitual offender statute under which Hicks had

been sentenced was declared unconstitutional, but Hicks’ conviction was affirmed on

the basis that his sentence was still within the permissible range open to the jury.

The Supreme Court reversed. Hicks was denied due process because he was statutorily entitled to the exercise of the jury’s discretion and could have been given a sentence as low as ten years. That the jury might still have given the stiffer sentence

was only conjectural. On other due process restrictions on the determination of the

applicability of recidivist statutes to convicted defendants, see Chewning v. Cunningham, 368 U.S. 443 (1962); Oyler v. Boles, 368 U.S. 448 (1962); Spencer v. Texas,

385 U.S. 554 (1967); Parke v. Raley, 506 U.S. 20 (1992).

1211 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. Williams

v. Oklahoma, 358 U.S. 576, 586–87 (1959). See also Collins v. Johnston, 237 U.S.

502 (1915). On recidivist statutes, see Graham v. West Virginia, 224 U.S. 616, 623

(1912); Ughbanks v. Armstrong, 208 U.S. 481, 488 (1908), and, under the Eighth

Amendment, Rummel v. Estelle, 445 U.S. 263 (1980).

1212 337 U.S. 241 (1949). See also Williams v. Oklahoma, 358 U.S. 576 (1959).

1213 430 U.S. 349 (1977).

1214 In Gardner, the jury had recommended a life sentence upon convicting defendant of murder, but the trial judge sentenced the defendant to death, relying in

part on a confidential presentence report which he did not characterize or make available to defense or prosecution. Justices Stevens, Stewart, and Powell found that be2046 AMENDMENT 14—RIGHTS GUARANTEED
In United States v. Grayson,

1215 a noncapital case, the Court relied heavily on Williams in holding that a sentencing judge may

properly consider his belief that the defendant was untruthful in

his trial testimony in deciding to impose a more severe sentence

than he would otherwise have imposed. the Court declared that,

under the current scheme of individualized indeterminate sentencing, the judge must be free to consider the broadest range of information in assessing the defendant’s prospects for rehabilitation; defendant’s truthfulness, as assessed by the trial judge from his own

observations, is relevant information.1216

There are various sentencing proceedings, however, that so implicate substantial rights that additional procedural protections are

required.1217 Thus, in Specht v. Patterson,

1218 the Court considered

a defendant who had been convicted of taking indecent liberties,

which carried a maximum sentence of ten years, but was sentenced under a sex offenders statute to an indefinite term of one

day to life. The sex offenders law, the Court observed, did not make

the commission of the particular offense the basis for sentencing.

Instead, by triggering a new hearing to determine whether the convicted person was a public threat, a habitual offender, or mentally

ill, the law in effect constituted a new charge that must be accompanied by procedural safeguards. And in Mempa v. Rhay,

1219 the

Court held that, when sentencing is deferred subject to probation

and the terms of probation are allegedly violated so that the concause death was significantly different from other punishments and because sentencing procedures were subject to higher due process standards than when Williams

was decided, the report must be made part of the record for review so that the factors motivating imposition of the death penalty may be known, and ordinarily must

be made available to the defense. 430 U.S. at 357–61. All but one of the other Justices joined the result on various other bases. Justice Brennan without elaboration

thought the result was compelled by due process, id. at 364, while Justices White

and Blackmun thought the result was necessitated by the Eighth Amendment, id.

at 362, 364, as did Justice Marshall in a different manner. Id. at 365. Chief Justice

Burger concurred only in the result, id. at 362, and Justice Rehnquist dissented. Id.

at 371. See also Lankford v. Idaho, 500 U.S. 110 (1991) (due process denied where

judge sentenced defendant to death after judge’s and prosecutor’s actions misled defendant and counsel into believing that death penalty would not be at issue in sentencing hearing).

1215 438 U.S. 41 (1978).

1216 438 U.S. at 49–52. See also United States v. Tucker, 404 U.S. 443, 446 (1972);

Chaffin v. Stynchcombe, 412 U.S. 17, 32 (1973). Cf. 18 U.S.C. § 3577.

1217 See, e.g, Kent v. United States, 383 U.S. 541, 554, 561, 563 (1966), where

the Court required that before a juvenile court decided to waive jurisdiction and

transfer a juvenile to an adult court it must hold a hearing and permit defense counsel to examine the probation officer’s report which formed the basis for the court’s

decision. Kent was ambiguous whether it was based on statutory interpretation or

constitutional analysis. In re Gault, 387 U.S. 1 (1967), however, appears to have

constitutionalized the language.

1218 386 U.S. 605 (1967).

1219 389 U.S. 128 (1967).

AMENDMENT 14—RIGHTS GUARANTEED 2047
victed defendant is returned for sentencing, he must then be represented by counsel, inasmuch as it is a point in the process where

substantial rights of the defendant may be affected.

Due process considerations can also come into play in sentencing if the state attempts to withhold relevant information from the

jury. For instance, in Simmons v. South Carolina, the Court held

that due process requires that if prosecutor makes an argument for

the death penalty based on the future dangerousness of the defendant to society, the jury must then be informed if the only alternative to a death sentence is a life sentence without possibility of parole.1220 But, in Ramdass v. Angelone,

1221 the Court refused to apply

the reasoning of Simmons because the defendant was not technically parole ineligible at time of sentencing.

A defendant should not be penalized for exercising a right to

appeal. Thus, it is a denial of due process for a judge to sentence a

convicted defendant on retrial to a longer sentence than he received after the first trial if the object of the sentence is to punish

the defendant for having successfully appealed his first conviction

or to discourage similar appeals by others.1222 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.1223

Because the possibility of vindictiveness in resentencing is de

minimis when it is the jury that sentences, however, the requirement of justifying a more severe sentence upon resentencing is inapplicable to jury sentencing, at least in the absence of a showing

that the jury knew of the prior vacated sentence.1224 The presump1220 512 U.S. 154 (1994). See also Lynch v. Arizona, 578 U.S. ___, No. 15–8366,

slip op. at 3–4 (2016) (holding that the possibility of clemency and the potential for

future “legislative reform” does not justify a departure from the rule of Simmons);

Kelly v. South Carolina, 534 U.S. 246, 252 (2002) (concluding that a prosecutor need

not express intent to rely on future dangerousness; logical inferences may be drawn);

Shafer v. South Carolina, 532 U.S. 36 (2001) (amended South Carolina law still runs

afoul of Simmons).

1221 530 U.S. 156 (2000).

1222 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, because 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.

1223 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).

1224 Chaffin v. Stynchcombe, 412 U.S. 17 (1973). The Court concluded that the

possibility of vindictiveness was so low because normally the jury would not know

2048 AMENDMENT 14—RIGHTS GUARANTEED
tion 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.1225

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.” 1226 This holding has

been reaffirmed,1227 although the Court has also held that, when a

state does provide appellate review, it may not so condition the privilege as to deny it irrationally to some persons, such as indigents.1228

A state is not free, however, to have no corrective process in

which defendants may pursue remedies for federal constitutional

violations. In Frank v. Mangum,

1229 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, the

Court has stated numerous times that the absence of some form of

corrective process when the convicted defendant alleges a federal

of the result of the prior trial nor the sentence imposed, nor would it feel either the

personal or institutional interests of judges leading to efforts to discourage the seeking of new trials. Justices Stewart, Brennan, and Marshall thought the principle

was applicable to jury sentencing and that prophylactic limitations appropriate to

the problem should be developed. Id. at 35, 38. Justice Douglas dissented on other

grounds. Id. at 35. The Pearce presumption that an increased, judge-imposed second

sentence represents vindictiveness also is inapplicable if the second trial came about

because the trial judge herself concluded that a retrial was necessary due to prosecutorial misconduct before the jury in the first trial. Texas v. McCullough, 475 U.S. 134

(1986).

1225 Alabama v. Smith, 490 U.S. 794 (1989).

1226 McKane v. Durston, 153 U.S. 684, 687 (1894). See also Andrews v. Swartz,

156 U.S. 272, 275 (1895); Murphy v. Massachusetts, 177 U.S. 155, 158 (1900); Reetz

v. Michigan, 188 U.S. 505, 508 (1903).

1227 Griffin v. Illinois, 351 U.S. 12, 18 (1956); id. at 21 (Justice Frankfurter concurring), 27 (dissenting opinion); Ross v. Moffitt, 417 U.S. 600 (1974).

1228 The line of cases begins with Griffin v. Illinois, 351 U.S. 12 (1956), in which

it was deemed to violate both the Due Process and the Equal Protection Clauses for

a state to deny to indigent defendants free transcripts of the trial proceedings, which

would enable them adequately to prosecute appeals from convictions. See analysis

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

Protection—Generally,” infra.

1229 237 U.S. 309, 335 (1915).

AMENDMENT 14—RIGHTS GUARANTEED 2049
constitutional violation contravenes the Fourteenth Amendment,1230 and the Court has held that to burden this process, such

as by limiting the right to petition for habeas corpus, is to deny the

convicted defendant his constitutional rights.1231

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 the

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.” 1232 If a state

provides a mode of redress, then a defendant must first exhaust

that mode. If he is unsuccessful, or if a state does not provide an

adequate mode of redress, then the defendant may petition a federal court for relief through a writ of habeas corpus.

1233

When appellate or other corrective process is made available,

because 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.1234 But, in Moore v. Dempsey,

1235 while insisting that

1230 Moore v. Dempsey, 261 U.S. 86, 90, 91 (1923); Mooney v. Holohan, 294 U.S.

103, 113 (1935); New York ex rel. Whitman v. Wilson, 318 U.S. 688, 690 (1943); Young

v. Ragan, 337 U.S. 235, 238–39 (1949).

1231 Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945).

1232 Carter v. Illinois, 329 U.S. 173, 175–76 (1946).

1233 In Case v. Nebraska, 381 U.S. 336 (1965) (per curiam), the Court had taken

for review a case that raised the issue of whether a state could simply omit any

corrective process for hearing and determining claims of federal constitutional violations, but it dismissed the case when the state in the interim enacted provisions for

such process. Justices Clark and Brennan each wrote a concurring opinion.

1234 Frank v. Mangum, 237 U.S. 309 (1915).

1235 261 U.S. 86 (1923).

2050 AMENDMENT 14—RIGHTS GUARANTEED
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 1236 and now taken for granted.

The Court has held, however, that the Due Process Clause does

not provide convicted persons a right to postconviction access to the

state’s evidence for DNA testing.1237 Chief Justice Roberts, in a fiveto-four decision, noted that 46 states had enacted statutes dealing

specifically with access to DNA evidence, and that the Federal Government had enacted a statute that allows federal prisoners to move

for court-ordered DNA testing under specified conditions. Even the

states that had not enacted statutes dealing specifically with access to DNA evidence must, under the Due Process Clause, provide

adequate postconviction relief procedures. The Court, therefore, saw

“no reason to constitutionalize the issue.” 1238 It also expressed concern that “[e]stablishing a freestanding right to access DNA evidence for testing would force us to act as policymakers . . . . We

would soon have to decide if there is a constitutional obligation to

preserve forensic evidence that might later be tested. If so, for how

long? Would it be different for different types of evidence? Would

the State also have some obligation to gather such evidence in the

first place? How much, and when?” 1239

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.” 1240 This view is not now the law, and may

1236 297 U.S. 278 (1936).

1237 District Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S.

___, No. 08–6 (2009).

1238 557 U.S. ___, No. 08–6, slip op. at 2.

1239 557 U.S. ___, No. 08–6, slip op. at 20 (citation omitted). Justice Stevens, in

a dissenting opinion joined by Justices Ginsburg and Breyer and in part by Justice

Souter, concluded, “[T]here is no reason to deny access to the evidence and there

are many reasons to provide it, not least of which is a fundamental concern in ensuring that justice has been done in this case.” Id. at 17.

1240 Ruffin v. Commonwealth, 62 Va. 790, 796 (1871).

AMENDMENT 14—RIGHTS GUARANTEED 2051
never have been wholly correct.1241 In 1948 the Court declared that

“[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights”; 1242 “many,” indicated less than

“all,” and it was clear that the Due Process and Equal Protection

Clauses to some extent do apply to prisoners.1243 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 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 . . . .” 1244 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.1245

Save for challenges to conditions of confinement of pretrial detainees,1246 the Court has generally treated challenges to prison con1241 Cf. In re Bonner, 151 U.S. 242 (1894).

1242 Price v. Johnston, 334 U.S. 266, 285 (1948).

1243 “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).

1244 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).

1245 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).

1246 See Bell v. Wolfish, 441 U.S. 520, 535–40 (1979). Persons not yet convicted

of a crime may be detained by the government upon the appropriate determination

of probable cause, and the government is entitled to “employ devices that are calculated to effectuate [a] detention.” Id. at 537. Nonetheless, the Court has held that

the Due Process Clause protects a pretrial detainee from being subject to conditions

that amount to punishment, which can be demonstrated through (1) actions taken

with the “express intent to punish” or (2) the use of restrictions or conditions on

confinement that are not reasonably related to a legitimate goal. See Wolfish, 441

U.S. at 538, 561. More recently, the Court clarified the standard by which the due

process rights of pretrial detainees are adjudged with respect to excessive force claims.

Specifically, in Kingsley v. Hendrickson, the Court held that, in order for a pretrial

detainee to prove an excessive force claim in violation of his due process rights, a

plaintiff must show that an officer’s use of force was objectively unreasonable, depending on the facts and circumstances from the perspective of a reasonable officer

on the scene, see 576 U.S. ___, No. 14–6368, slip op. at 6–7 (2015), aligning the due

process excessive force analysis with the standard for excessive force claims brought

under the Fourth Amendment. Cf. Graham v. Connor, 490 U.S. 386, 388 (1989) (holding that a “free citizen’s claim that law enforcement officials used excessive force

. . . [is] properly analyzed under the Fourth Amendment’s ‘objective reasonableness’

standard”). Liability for actions taken by the government in the context of a pretrial

detainee due process lawsuit does not, therefore, turn on whether a particular officer subjectively knew that the conduct being taken was unreasonable. See Kingsley,

slip op. at 1.

2052 AMENDMENT 14—RIGHTS GUARANTEED
ditions as a whole under the Cruel and Unusual Punishments Clause

of the Eighth Amendment,1247 while challenges to particular incidents and practices are pursued under the Due Process Clause 1248

or more specific provisions, such as the First Amendment’s speech

and religion clauses.1249 Prior to formulating its current approach,

the Court recognized several rights of prisoners. Prisoners have the

right to petition for redress of grievances, which includes access to

the courts for purposes of presenting their complaints,1250 and to

bring actions in federal courts to recover for damages wrongfully

done them by prison administrators.1251 And they have a right, circumscribed by legitimate prison administration considerations, to

fair and regular treatment during their incarceration. Prisoners have

a right to be free of racial segregation in prisons, except for the

necessities of prison security and discipline.1252

In Turner v. Safley,

1253 the Court announced a general standard for measuring prisoners’ claims of deprivation of constitutional rights: “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related

to legitimate penological interests.” 1254 Several considerations, the

1247 See “Prisons and Punishment,” supra.

1248 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).

1249 E.g., Procunier v. Martinez, 416 U.S. 396 (1974); Jones v. North Carolina

Prisoners’ 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).

1250 Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945).

Prisoners must have reasonable access to a law library or to persons trained in the

law. Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817 (1978).

Establishing a right of access to law materials, however, requires an individualized

demonstration of an inmate having been hindered in efforts to pursue a legal claim.

See Lewis v. Casey, 518 U.S. 343 (1996) (no requirement that the state “enable [a]

prisoner to discover grievances, and to litigate effectively”).

1251 Haines v. Kerner, 404 U.S. 519 (1972); Preiser v. Rodriguez, 411 U.S. 475

(1973).

1252 Lee v. Washington, 390 U.S. 333 (1968). There was some question as to the

standard to be applied to racial discrimination in prisons after Turner v. Safley, 482

U.S. 78 (1987) (prison regulations upheld if “reasonably related to legitimate penological interests”). In Johnson v. California, 543 U.S. 499 (2005), however, the Court

held that discriminatory prison regulations would continue to be evaluated under a

“strict scrutiny” standard, which requires that regulations be narrowly tailored to

further compelling governmental interests. Id. at 509–13 (striking down a requirement that new or transferred prisoners at the reception area of a correctional facility be assigned a cellmate of the same race for up to 60 days before they are given a

regular housing assignment).

1253 482 U.S. 78 (1987)

1254 482 U.S. at 89 (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). See Overton v. Bazzetta, 539 U.S. 126

(2003) (upholding restrictions on prison visitation by unrelated children or children

AMENDMENT 14—RIGHTS GUARANTEED 2053
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.1255 A further indicium of reasonableness

is present if accommodation would have a negative effect on the

liberty or safety of guards, other inmates,1256 or visitors.1257 On the

other hand, “if an inmate claimant can point to an alternative that

fully accommodated the prisoner’s rights at de minimis cost to valid

penological interests,” it would suggest unreasonableness.1258

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.1259 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.1260 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.1261 Due process is not implicated at all by negligent deprivation of life, liberty, or property

by prison officials.1262

A change of the conditions under which a prisoner is housed,

including one imposed as a matter of discipline, may implicate a

protected liberty interest if such a change imposes an “atypical and

significant hardship” on the inmate.1263 In Wolff v. McDonnell,

1264

over which a prisoner’s parental rights have been terminated and visitation where

a prisoner has violated rules against substance abuse).

1255 For instance, limiting who may visit prisoners is ameliorated by the ability

of prisoners to communicate through other visitors, by letter, or by phone. 539 U.S.

at 135.

1256 482 U.S. at 90, 92.

1257 Hudson v. Palmer, 468 U.S. 517, 526 (1984).

1258 482 U.S. at 91.

1259 Hudson v. Palmer, 468 U.S. 517, 526 (1984); Block v. Rutherford, 468 U.S.

576 (1984) (holding also that needs of prison security support a rule denying pretrial detainees contact visits with spouses, children, relatives, and friends).

1260 Hudson v. Palmer, 468 U.S. 517, 530 (1984).

1261 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”).

1262 Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344

(1986).

1263 Sandin v. Conner, 515 U.S. 472, 484 (1995) (30-day solitary confinement not

atypical “in relation to the ordinary incidents of prison life”).

2054 AMENDMENT 14—RIGHTS GUARANTEED
the Court promulgated due process standards to govern the imposition of discipline upon prisoners. Due process applies, but, because

prison disciplinary proceedings are not part of a criminal prosecution, the full panoply of a defendant’s rights is not available. Rather,

the analysis must proceed by identifying the interest in “liberty”

that the clause protects. Thus, where the state provides for goodtime 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 the minimum procedures appropriate under the circumstances.1265 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 in Wolff held 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.” 1266 In addition, an “inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his

defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” 1267 Confrontation

and cross-examination of adverse witnesses is not required inasmuch as these would no doubt threaten 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.1268 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.1269

1264 418 U.S. 539 (1974).

1265 418 U.S. at 557. This analysis, of course, tracks the interest analysis discussed under “The Interests Protected: Entitlements and Positivist Recognition,” supra.

1266 418 U.S. at 563.

1267 418 U.S. at 566. However, the Court later ruled that the 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).

1268 418 U.S. at 561–72. The Court continues to adhere to its refusal to require

appointment of counsel. Vitek v. Jones, 445 U.S. 480, 496–97 (1980), and id. at 497–

500 (Justice Powell concurring); Baxter v. Palmigiano, 425 U.S. 308 (1976).

1269 Superintendent v. Hill, 472 U.S. 445, 454, 457 (1985).

AMENDMENT 14—RIGHTS GUARANTEED 2055
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. Because 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.1270

The same principles govern interstate prison transfers.1271

Transfer of a prisoner to a high security facility, with an attendant loss of the right to parole, gave rise to a liberty interest, although the due process requirements to protect this interest are limited.1272 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, for two reasons, be preceded by

a hearing. First, the statute gave the inmate a liberty interest, because it presumed that he would not be moved absent a finding that

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.1273

The kind of hearing that 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.

1274 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.

1270 Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236

(1976).

1271 Olim v. Wakinekona, 461 U.S. 238 (1983).

1272 Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to Ohio SuperMax

prison, with attendant loss of parole eligibility and with only annual status review,

constitutes an “atypical and significant hardship”). In Wilkinson, the Court upheld

Ohio’s multi-level review process, despite the fact that a prisoner was provided only

summary notice as to the allegations against him, a limited record was created, the

prisoner could not call witnesses, and reevaluation of the assignment only occurred

at one 30-day review and then annually. Id. at 219–20.

1273 Vitek v. Jones, 445 U.S. 480 (1980).

1274 494 U.S. 210 (1990).

2056 AMENDMENT 14—RIGHTS GUARANTEED
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 that 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 governmental authority,1275 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,

1276 the trial judge had

deferred sentencing and placed the convicted defendant on probation; when facts subsequently developed that indicated a violation

of the conditions of probation, he was summoned and summarily

sentenced to prison. The Court held that he was entitled to counsel

at the deferred sentencing hearing.

In Morrissey v. Brewer 1277 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.” 1278 What process is due,

then, turned upon the state’s interests. Its principal interest was

that, having once convicted a defendant, imprisoned him, and, at

some risk, released him for rehabilitation purposes, it should be “able

to return the individual to imprisonment without the burden of a

1275 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.

1276 389 U.S. 128 (1967).

1277 408 U.S. 471 (1972).

1278 408 U.S. at 480, 482.

AMENDMENT 14—RIGHTS GUARANTEED 2057
new adversary criminal trial if in fact he has failed to abide by the

conditions of his parole. Yet, the state has no interest in revoking

parole without some informal procedural guarantees,” inasmuch as

such guarantees will not interfere with its reasonable interests.1279

Minimal due process, the Court held, requires that at both stages

of the revocation process—the arrest of the parolee and the formal

revocation—the parolee is entitled to certain rights. Promptly following arrest of the parolee, there should be an informal hearing

to determine whether reasonable grounds exist for revocation of parole; this preliminary hearing should be conducted at or reasonably

near the place of the alleged parole violation or arrest and as promptly

as convenient after arrest while information is fresh and sources

are available, and should be conducted by someone not directly involved in the case, though he need not be a judicial officer. The parolee should be given adequate notice that the hearing will take

place and what violations are alleged, he should be able to appear

and speak in his own behalf and produce other evidence, and he

should be allowed to examine those who have given adverse evidence against him unless it is determined that the identity of such

informant should not be revealed. Also, the hearing officer should

prepare a digest of the hearing and base his decision upon the evidence adduced at the hearing.1280

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 crossexamine 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.” 1281 Ordinarily, the written statement need not indicate that the sentencing court or review board

1279 408 U.S. at 483.

1280 408 U.S. at 484–87.

1281 408 U.S. at 489.

2058 AMENDMENT 14—RIGHTS GUARANTEED
considered alternatives to incarceration,1282 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.1283

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.1284

With respect to the granting of parole, the Court’s analysis of

the Due Process Clause’s meaning in Greenholtz v. Nebraska Penal

Inmates 1285 is much more problematical. The theory was rejected

that the mere establishment of the possibility of parole was sufficient to create a liberty interest entitling any prisoner meeting the

general standards of eligibility to a due process protected expectation of being dealt with in any particular way. On the other hand,

the Court did recognize that a parole statute could create an expectancy of release entitled to some measure of constitutional protection, although a determination would need to be made on a case-bycase basis,1286 and the full panoply of due process guarantees is not

required.1287 Where, however, government by its statutes and regu1282 Black v. Romano, 471 U.S. 606 (1985).

1283 Bearden v. Georgia, 461 U.S. 660, 672 (1983).

1284 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

1285 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.

1286 Following Greenholtz, the Court held in Board of Pardons v. Allen, 482 U.S.

369 (1987), that a liberty interest was created by a Montana statute providing that

a prisoner “shall” be released upon certain findings by a parole board. Accord Swarthout

v. Cooke, 562 U.S. ___, 10–333, slip op. (2011) (per curiam).

1287 The Court in Greenholtz held that procedures designed to elicit specific facts

were inappropriate under the circumstances, and minimizing the risk of error should

be the prime consideration. This goal may be achieved by the board’s largely informal methods; eschewing formal hearings, notice, and specification of particular evidence in the record. The inmate in this case was afforded an opportunity to be heard

and when parole was denied he was informed in what respects he fell short of qualifying. That afforded the process that was due. Accord Swarthout v. Cooke, 562 U.S.

___, 10–333, slip op. (2011) (per curiam).

AMENDMENT 14—RIGHTS GUARANTEED 2059
lations creates no obligation of the pardoning authority and thus

creates no legitimate expectancy of release, the prisoner may not

by showing the favorable exercise of the authority in the great number of cases demonstrate such a legitimate expectancy. The power

of the executive to pardon, or grant clemency, being a matter of grace,

is rarely subject to judicial review.1288

The Problem of the Juvenile Offender.—All fifty states and

the District of Columbia provide for dealing with juvenile offenders

outside the criminal system for adult offenders.1289 Their 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 the 20th 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.1290

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 1291 that the application of due

process to juvenile proceedings would not endanger the good inten1288 Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998). The mere existence of purely discretionary authority and the frequent exercise of it creates no

entitlement. Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); Jago v.

Van Curen, 454 U.S. 14 (1981). The former case involved not parole but commutation of a life sentence, commutation being necessary to become eligible for parole.

The statute gave the Board total discretion to commute, but in at least 75% of the

cases prisoner received a favorable action and virtually all of the prisoners who had

their sentences commuted were promptly paroled. In Van Curen, the Court made

express what had been implicit in Dumschat; the “mutually explicit understandings” concept under which some property interests are found protected does not apply to liberty interests. Van Curen is also interesting because there the parole board

had granted the petition for parole but within days revoked it before the prisoner

was released, upon being told that he had lied at the hearing before the board.

1289 For analysis of the state laws as well as application of constitutional principles to juveniles, see SAMUEL M. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE SYSTEM (2d ed. 2006).

1290 In re Gault, 387 U.S. 1, 12–29 (1967).

1291 387 U.S. 1 (1967).

2060 AMENDMENT 14—RIGHTS GUARANTEED
tions vested in the system nor diminish the features of the system

which were deemed desirable—emphasis upon rehabilitation rather

than punishment, a measure of informality, avoidance of the stigma

of criminal conviction, the low visibility of the process—but that the

consequences of the absence of due process standards made their

application necessary.1292

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 crossexamination, and required that the juvenile be protected against

self-incrimination.1293 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.

1294 Subsequently, the Court held that the “essentials of

due process and fair treatment” required that a juvenile could be

adjudged delinquent only on evidence beyond a reasonable doubt

when the offense charged would be a crime if committed by an

adult,1295 but still later the Court held that jury trials were not constitutionally required in juvenile trials.1296

1292 “Ultimately, however, we confront the reality of that portion of the juvenile

court process with which we deal in this case. A boy is charged with misconduct.

The boy is committed to an institution where he may be restrained of liberty for

years. It is of no constitutional consequence—and of limited practical meaning—

that the institution to which he is committed is called an Industrial School. The

fact of the matter is that, however euphemistic the title, a ‘receiving home’ or an

‘industrial school’ for juveniles is an institution of confinement in which the child is

incarcerated for a greater or lesser time. His world becomes ‘a building with whitewashed walls, regimented routine and institutional hours . . . .’ Instead of mother

and father and sisters and brothers and friends and classmates, his world is peopled

by guards, custodians, state employees, and ‘delinquents’ confined with him for anything from waywardness to rape and homicide. In view of this, it would be extraordinary if our Constitution did not require the procedural regularity and the exercise

of care implied in the phrase ‘due process.’ Under our Constitution, the condition of

being a boy does not justify a kangaroo court.” 387 U.S. at 27–28.

1293 387 U.S. at 31–35. Justice Harlan concurred in part and dissented in part,

id. at 65, agreeing on the applicability of due process but disagreeing with the standards of the Court. Justice Stewart dissented wholly, arguing that the application of

procedures developed for adversary criminal proceedings to juvenile proceedings would

endanger their objectives and contending that the decision was a backward step toward undoing the reforms instituted in the past. Id. at 78.

1294 Kent v. United States, 383 U.S. 541 (1966), noted on this point in In re Gault,

387 U.S. 1, 30–31 (1967).

1295 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 judiAMENDMENT 14—RIGHTS GUARANTEED 2061
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 . . . .”

1297

In another case the Court ruled that, although the Fourth Amendment applies to searches of students by public school authorities,

neither the warrant requirement nor the probable cause standard

is appropriate.1298 Instead, a simple reasonableness standard governs all searches of students’ persons and effects by school authorities.1299

cial 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.

1296 McKeiver v. Pennsylvania, 403 U.S. 528 (1971). No opinion was concurred

in by a majority of the Justices. Justice Blackmun’s opinion of the Court, which was

joined by Chief Justice Burger and Justices Stewart and White, reasoned that a

juvenile proceeding was not “a criminal prosecution” within the terms of the Sixth

Amendment, so that jury trials were not automatically required; instead, the prior

cases had proceeded on a “fundamental fairness” approach and in that regard a jury

was not a necessary component of fair factfinding and its use would have serious

repercussions on the rehabilitative and protection functions of the juvenile court.

Justice White also submitted a brief concurrence emphasizing the differences between adult criminal trials and juvenile adjudications. Id. at 551. Justice Brennan

concurred in one case and dissented in another because in his view open proceedings would operate to protect juveniles from oppression in much the same way as a

jury would. Id. at 553. Justice Harlan concurred because he did not believe jury

trials were constitutionally mandated in state courts. Id. at 557. Justices Douglas,

Black, and Marshall dissented. Id. at 557.

1297 Fare v. Michael C., 442 U.S. 707, 725 (1979).

1298 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

school rule; evidence of drug activity held admissible in a prosecution under the juvenile laws). In Safford Unified School District #1 v. Redding, 557 U.S. ___, No. 08–

479 (2009), the Court found unreasonable a strip search of a 13-year-old girl suspected of possessing ibuprofen. See Fourth Amendment, “Public Schools,” supra.

1299 This single rule, the Court explained, will permit school authorities “to regulate their conduct according to the dictates of reason and common sense.” 469 U.S.

at 343. Rejecting the suggestion of dissenting Justice Stevens, the Court was “unwilling to adopt a standard under which the legality of a search is dependent upon a

judge’s evaluation of the relative importance of various school rules.” 469 U.S. at

342 n.9.

2062 AMENDMENT 14—RIGHTS GUARANTEED
The Court ruled in Schall v. Martin 1300 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.1301 With the Court having clarified the constitutional 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,

1302 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 16.1303 In weighing validity under the Eighth

Amendment, the Court has looked to state practice to determine

whether a consensus against execution exists.1304 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 with juvenile offenders, several other classes of persons are subject to confinement by

court processes deemed civil rather than criminal. Within this category of “protective commitment” are involuntary commitments for

treatment of insanity and other degrees of mental disability, alcoholism, narcotics addiction, sexual psychopathy, and the like. In

O’Connor v. Donaldson,

1305 the Court held that “a State cannot constitutionally confine without more a nondangerous individual who

1300 467 U.S. 253 (1984).

1301 See SAMUEL M. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE SYSTEM, ch. 4,

Waiver of Jurisdiction (2d ed. 1989).

1302 492 U.S. 361 (1989).

1303 Thompson v. Oklahoma, 487 U.S. 815 (1988).

1304 See analysis of Eighth Amendment principles, under “Capital Punishment,”

supra.

1305 422 U.S. 563 (1975). The Court bypassed “the difficult issues of constitutional law” raised by the lower courts’ resolution of the case, that is, the right to

treatment of the involuntarily committed, discussed under “Liberty Interests of People

with Mental Disabilities: Commitment and Treatment,” supra.

AMENDMENT 14—RIGHTS GUARANTEED 2063
is capable of surviving safely in freedom by himself or with the help

of willing and responsible family members or friends.” 1306 The jury

had found that Donaldson was not dangerous to himself or to others, and the Court ruled that he had been unconstitutionally confined.1307 Left to another day were such questions as “when, or by

what procedures, a mentally ill person may be confined by the State

on any of the grounds which, under contemporary statutes, are generally advanced to justify involuntary confinement of such a person—to prevent injury to the public, to ensure his own survival or

safety, or to alleviate or cure his illness” 1308 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 post-deprivation remedy can cure the

due process violation.1309

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 the government to assume a greater share of the risk of error in proving the

existence of such illness as a precondition to confinement. Thus, the

evidentiary standard of a preponderance, normally used in litigation between private parties, is constitutionally inadequate in commitment proceedings. On the other hand, the criminal standard of

beyond a reasonable doubt is not necessary because the state’s aim

is not punitive and because some or even much of the consequence

of an erroneous decision not to commit may fall upon the individual. Moreover, the criminal standard addresses an essentially factual question, whereas interpretative and predictive determinations must also be made in reaching a conclusion on commitment.

1306 422 U.S. at 576. Prior to O’Connor v. Donaldson, only in Minnesota ex rel.

Pearson v. Probate Court, 309 U.S. 270 (1940), had the Court considered the issue.

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).

1307 422 U.S. at 576–77. The Court remanded to allow the trial court to determine whether Donaldson should recover personally from his doctors and others for

his confinement, under standards formulated under 42 U.S.C. § 1983. See Wood v.

Strickland, 420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S. 232 (1974).

1308 O’Connor v. Donaldson, 422 U.S. 563, 573 (1975).

1309 Zinermon v. Burch, 494 U.S. 113 (1990).

2064 AMENDMENT 14—RIGHTS GUARANTEED
The Court therefore imposed a standard of “clear and convincing”

evidence.1310

In Parham v. J.R., the Court confronted difficult questions as

to what due process requires 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.1311 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.1312 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.1313 Left to future resolution was the question of the due process requirements

for postadmission review of the necessity for continued confinement.1314

EQUAL PROTECTION OF THE LAWS

Scope and Application

State Action.—The Fourteenth Amendment, by its terms, limits discrimination only by governmental entities, not by private parties.1315 As the Court has noted, “the action inhibited by the first

1310 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).

1311 442 U.S. 584 (1979). See also Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640 (1979).

1312 442 U.S. at 598–617. The dissenters agreed on this point. Id. at 626–37.

1313 442 U.S. at 617–20. The dissenters would have required a preconfinement

hearing. Id. at 637–38.

1314 442 U.S. at 617. The dissent would have mandated a formal postadmission

hearing. Id. at 625–26.

1315 The Amendment provides that “[n]o State” and “nor shall any State” engage in the proscribed conduct. There are, of course, numerous federal statutes that

prohibit discrimination by private parties. See, e.g., Civil Rights Act of 1964, Title

II, 78 Stat. 241, 243, 42 U.S.C. §§ 2000a et seq. These statutes, however, are generally based on Congress’s power to regulate commerce. See Katzenbach v. McClung,

379 U.S. 294 (1964); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

AMENDMENT 14—RIGHTS GUARANTEED 2065
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.” 1316 Although state action requirements also apply to other

provisions of the Constitution 1317 and to federal governmental actions,1318 the doctrine is most often associated with the application

of the Equal Protection Clause to the states.1319

Certainly, an act passed by a state legislature that directs a discriminatory result is state action and would violate the first section of the Fourteenth Amendment.1320 In addition, acts by other

branches of government “by whatever instruments or in whatever

modes that action may be taken” can result in a finding of “state

action.” 1321 But the difficulty for the Court has been when the con1316 Shelley v. Kraemer, 334 U.S. 1, 13 (1948). “It is State action of a particular

character that is prohibited. Individual invasion of individual rights is not the subjectmatter 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.” Civil Rights Cases, 109 U.S. 3, 11 (1883).

1317 The doctrine applies to other rights protected of the Fourteenth Amendment, such as privileges and immunities and failure to provide due process. It also

applies to Congress’s enforcement powers under section 5 of the Amendment. For

discussion of the latter, see Section 5, Enforcement, “State Action,” infra. Several

other constitutional rights are similarly limited—the Fifteenth Amendment (racial

discrimination in voting), the Nineteenth Amendment (sex discrimination in voting)

and the Twenty-sixth Amendment (voting rights for 18-year olds)—although the Thirteenth Amendment, banning slavery and involuntary servitude, is not.

1318 The scope and reach of the “state action” doctrine is the same whether a

state or the National Government is concerned. See CBS v. Democratic Nat’l Comm.,

412 U.S. 94 (1973).

1319 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).

1320 United States v. Raines, 362 U.S. 17, 25 (1960). A prime example is the

statutory requirement of racially segregated schools condemned in Brown v. Board

of Education, 347 U.S. 483 (1954). See also 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.

1321 Ex parte Virginia, 100 U.S. 339, 346 (1880). “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.” Id. at 346–47

2066 AMENDMENT 14—RIGHTS GUARANTEED
duct complained of is not so clearly the action of a state. For instance, is it state action when a minor state official’s act was not

authorized or perhaps was even forbidden by state law? What if a

private party engages in discrimination while in a special relationship with governmental authority? “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.1322

The state action doctrine is not just a textual interpretation of

the Fourteenth Amendment, but may also serve the purposes of federalism. Thus, following the Civil War, when the Court sought to

reassert states’ rights, it imposed a rather rigid state action standard, limiting the circumstances under which discrimination suits

could be pursued. During the civil rights movement of the 1950s

and 1960s, however 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.1323 “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.” 1324

1322 Terry v. Adams, 345 U.S. 461, 473 (1953) (concurring) (concerning the Fifteenth Amendment).

1323 The history of the state action doctrine makes clear that the Court has considerable discretion and that the weighing of the opposing values and interests will

lead to substantially different applications of the tests. “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).

1324 Lugar v. Edmondson Oil Co., 457 U.S. 922, 936–37 (1982). “Freedom of the

individual to choose his associates or his neighbors, to use and dispose of his property as he sees fit, to be irrational, arbitrary, capricious, even unjust in his personal

relations are things all entitled to a large measure of protection from governmental

interference. This liberty would be overridden in the name of equality, if the structures of the amendment were applied to governmental and private action without

distinction. Also inherent in the concept of state action are values of federalism, a

recognition that there are areas of private rights upon which federal power should

not lay a heavy hand and which should properly be left to the more precise instruAMENDMENT 14—RIGHTS GUARANTEED 2067
Operation of the state action doctrine was critical in determining whether school systems were segregated unconstitutionally by

race. The original Brown cases as well as many subsequent cases

arose in the context of statutorily mandated separation of the races,

and therefore the finding of state action occasioned no controversy.1325 In the South, the aftermath of the case more often involved disputes over which remedies were needed to achieve a unitary system than it did the requirements of state action.1326 But if

racial segregation is not the result of state action in some aspect,

then its existence is not subject to constitutional remedy.1327 Distinguishing between the two situations has occasioned much controversy.

For instance, in a case arising from a Denver, Colorado school

system in which no statutory dual system had ever been imposed,

the Court restated the obvious principle that de jure racial segregation caused by “intentionally segregative school board actions” is to

be treated as if it had been mandated by statute, and is to be distinguished from de facto segregation arising from actions not associated with the state.1328 In addition, when it is proved that a meaningful portion of a school system is segregated as a result of official

action, the responsible agency must then bear the burden of proving that other school segregation within the system is adventitious

and not the result of official action.1329 Moreover, the Court has also

apparently adopted a rule 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 devolve upon the agency so that so that subsequent facially neutral or ambiguous school board policies can form the basis for a judicial finding of intentional discrimination.1330

ments of local authority.” Peterson v. City of Greenville, 373 U.S. 244, 250 (1963)

(Justice Harlan concurring).

1325 Brown v. Board of Education, 347 U.S. 483 (1954).

1326 See “Brown’s Aftermath,” supra.

1327 Compare Washington v. Seattle School Dist., 458 U.S. 457 (1982), with Crawford

v. Los Angeles Bd. of Educ., 458 U.S. 527 (1982).

1328 “[T]he differentiating factor between de jure segregation and so-called de facto

segregation . . . is purpose or intent to segregate.” Keyes v. Denver School District,

413 U.S. 189, 208 (1973) (emphasis by Court). See also Columbus Bd. of Educ. v.

Penick, 443 U.S. 449, 457 n.5 (1979).

1329 It is not the responsibility of complainants to show that each school in a

system is de jure segregated to be entitled to a system-wide desegregation plan. 413

U.S. at 208–13. The continuing validity of the Keyes shifting-of-the-burden principle, after Washington v. Davis, 426 U.S. 229 (1976), and Dayton Bd. of Educ. v.

Brinkman, 433 U.S. 406 (1977), was asserted in Columbus Bd. of Educ. v. Penick,

443 U.S. 449, 455–458 & n.7, 467–68 (1979), and Dayton Bd. of Educ. v. Brinkman,

443 U.S. 526, 540–42 (1979).

1330 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).

2068 AMENDMENT 14—RIGHTS GUARANTEED
Different results follow, however, 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 interdistrict segregation.” 1331 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.1332 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,

1333 in which the Court found unconstitutional state action in the discriminatory administration of an

ordinance that was 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 unattributable to the state for purposes of

the Fourteenth Amendment. “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.” 1334 When the denial of equal protection is not commanded by

law or by administrative regulation but is nonetheless accom1331 Milliken v. Bradley, 418 U.S. 717, 744–45 (1974).

1332 Ex parte Virginia, 100 U.S. 339 (1880). Similarly, the acts of a state governor are state actions, Cooper v. Aaron, 358 U.S. 1, 16–17 (1958); Sterling v. Constantin,

287 U.S. 378, 393 (1932), as are the acts of prosecuting attorneys, Mooney v. Holohan,

294 U.S. 103, 112, 113 (1935), state and local election officials, United States v. Classic, 313 U.S. 299 (1941), and law enforcement officials. Griffin v. Maryland, 378 U.S.

130 (1964); Monroe v. Pape, 365 U.S. 167 (1961); Screws v. United States, 325 U.S.

91 (1945). One need not be an employee of the state to act “under color of” state

law; mere participation in an act with state officers suffices. United States v. Price,

383 U.S. 787 (1966).

1333 118 U.S. 356 (1886).

1334 United States v. Classic, 313 U.S. 299, 326 (1941). See also Screws v. United

States, 325 U.S. 91, 109 (1945) (citation omitted); Williams v. United States, 341

U.S. 97 (1951); United States v. Price, 383 U.S. 787 (1966). See also United States v.

AMENDMENT 14—RIGHTS GUARANTEED 2069
plished through police enforcement of “custom” 1335 or through hortatory admonitions by public officials to private parties to act in a

discriminatory manner,1336 the action is state action. In addition,

when a state clothes a private party with official authority, that private party may not engage in conduct forbidden the state.1337

Beyond this are cases where a private individual discriminates,

and the question is whether a state has encouraged the effort or

has impermissibly aided it.1338 Of notable importance and a subject

of controversy since it was decided is Shelley v. Kraemer.

1339 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, this situation is to be distinguished

from where “the purposes of the agreements were secured only by

judicial enforcement by state courts of the restrictive terms of the

agreements.” 1340 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.

Raines, 362 U.S. 17, 25 (1960). As Justice Brandeis noted in Iowa-Des Moines Nat’l

Bank v. Bennett, 284 U.S. 239, 246 (1931), “acts done ‘by virtue of public position

under a State government . . . and . . . in the name and for the State’ . . . are not

to be treated as if they were the acts of private individuals, although in doing them

the official acted contrary to an express command of the state law.” Note that, for

purposes of being amenable to suit in federal court, however, the immunity of the

states does not shield state officers who are alleged to be engaging in illegal or unconstitutional action. Ex parte Young, 209 U.S. 123 (1908). Cf. Screws v. United States,

325 U.S. at 147–48. .

1335 Cf. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).

1336 Lombard v. Louisiana, 373 U.S. 267 (1963). No statute or ordinance mandated segregation at lunch counters but both the mayor and the chief of police had

recently issued statements announcing their intention to maintain the existing policy

of separation. Thus, the conviction of African-Americans for trespass because they

refused to leave a segregated lunch counter was voided.

1337 Griffin v. Maryland, 378 U.S. 130 (1964). Guard at private entertainment

ground was also deputy sheriff; he could not execute the racially discriminatory policies of his private employer. See also Williams v. United States, 341 U.S. 97 (1951).

1338 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.

1339 334 U.S. 1 (1948).

1340 334 U.S. at 13–14.

2070 AMENDMENT 14—RIGHTS GUARANTEED
The owners of the properties were willing sellers; and contracts of

sale were accordingly consummated. . . .” 1341

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.1342 But the Court has experienced no difficulty in finding that state court enforcement of common-law rules

in a way that has an impact upon speech and press rights is state

action and triggers the application of constitutional rules.1343

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,

1344 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 AfricanAmericans, ruled that the city could not operate the park in a segregated fashion. Instead of striking the segregation requirement from

the will, however, the court instead ordered return of the property

1341 “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.” 334

U.S. at 19. In Hurd v. Hodge, 334 U.S. 24 (1948), the Court outlawed judicial enforcement of restrictive covenants in the District of Columbia as violating 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.

1342 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 and certiorari dismissed, 349 U.S. 70 (1955); Black v. Cutter Laboratories, 351 U.S. 292 (1956). The central issue in the “sit-in” cases, whether state

enforcement of trespass laws at the behest of private parties acting on the basis of

their own discriminatory motivations, was evaded by the Court, in finding some other

form of state action and reversing all convictions. Individual Justices did elaborate,

however. Compare Bell v. Maryland, 378 U.S. 226, 255–60 (1964) (opinion of Justice

Douglas), with id. at 326 (Justices Black, Harlan, and White dissenting).

1343 In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and progeny, defamation actions based on common-law rules were found to implicate First Amendment rights and Court imposed varying limitations on such rules. 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.

1344 396 U.S. 435 (1970). The matter had previously been before the Court in

Evans v. Newton, 382 U.S. 296 (1966).

AMENDMENT 14—RIGHTS GUARANTEED 2071
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 AfricanAmericans were not discriminated against by the reversion, because everyone was deprived of use of the park.1345

The case of Reitman v. Mulkey 1346 was similar to Shelley in both

its controversy and the uncertainty of its rationale. In Reitman, the

Court struck down an amendment to the California Constitution

that prohibited the state and its subdivisions and agencies from forbidding racial discrimination in private housing. The Court, finding the provision to deny equal protection of the laws, appeared to

ground its decision on either of two lines of reasoning. First was

that the provision constituted state action to impermissibly encourage private racial discrimination. Second was that the provision made

discriminatory racial practices immune from the ordinary legislative process, and thus impermissibly burdened minorities in the

achievement of legitimate aims.1347 In a subsequent case, Hunter v.

Erickson,

1348 the latter rationale was used 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.1349

1345 396 U.S. at 445. Note the use of the same rationale in another context in

Palmer v. Thompson, 403 U.S. 217, 226 (1971). On a different result in the “Girard

College” will case, see Pennsylvania v. Board of Trustees, 353 U.S. 230 (1957), discussed infra.

1346 387 U.S. 369 (1967). The decision was 5-to-4, Justices Harlan, Black, Clark,

and Stewart dissenting. Id. at 387.

1347 See, e.g., 387 U.S. at 377 (language suggesting both lines of reasoning). But

see City of Cuyahoga Falls v. Buckeye Community Hope Foundation, 538 U.S. 188

(2003) (ministerial acts associated with a referendum repealing a low-income housing ordinance did not constitute state action, as the referendum process was facially

neutral, and the potentially discriminatory repeal was never enforced).

1348 393 U.S. 385 (1969).

1349 In contrast, other ordinances would become effective when passed, except

that petitions could be submitted to revoke those ordinances by referendum. 393

U.S. at 389–90 (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, relying on Mulkey to conclude 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.

2072 AMENDMENT 14—RIGHTS GUARANTEED
Two later decisions involving state referenda on busing for integration confirm that the condemning factor of Mulkey and Hunter

was the imposition of barriers to racial amelioration legislation.1350

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.” 1351 It

is thus not impermissible merely 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.1352 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.” 1353 State

action has been 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 the state prescribed a

general election ballot made up of party nominees chosen in the

primaries.1354 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.1355 When state courts on petition of interested parties removed the City of Macon as trustees of a segregated park that had

been left in trust for such use in a will, and appointed new trust1350 Washington v. Seattle School Dist., 458 U.S. 457 (1982); Crawford v. Los

Angeles Bd. of Educ., 458 U.S. 527 (1982). A five-to-four majority in Seattle found

the fault to be a racially based structuring of the political process making it more

difficult to undertake actions designed to improve racial conditions than to undertake any other educational action. An 8-to-1 majority in Crawford found that repeal

of a measure to bus to undo de facto segregation, without imposing any barrier to

other remedial devices, was permissible.

1351 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).

1352 Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) (private discrimination is not constitutionally forbidden “unless to some significant extent the

State in any of its manifestations has been found to have become involved in it”).

1353 365 U.S. at 722.

1354 Smith v. Allwright, 321 U.S. 649, 664 (1944).

1355 Pennsylvania v. Board of Trustees, 353 U.S. 230 (1957). On remand, the

state courts substituted private persons as trustees to carry out the will. In re Girard

College Trusteeship, 391 Pa. 434, 138 A.2d 844, cert. denied, 357 U.S. 570 (1958).

This expedient was, however, ultimately held unconstitutional. Brown v. Pennsylvania, 392 F.2d 120 (3d Cir.), cert. denied, 391 U.S. 921 (1968).

AMENDMENT 14—RIGHTS GUARANTEED 2073
ees 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.1356

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 AfricanAmericans from its restaurant. The Court 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 that the financial success of the restaurant benefitted the governmental agency. The “degree of state

participation and involvement in discriminatory action,” therefore,

was sufficient to condemn it.1357

The question arose, then, what degree of state participation was

“significant”? Would licensing of a business clothe the actions of that

business with sufficient state involvement? Would regulation? Or provision of police and fire protection? Would enforcement of state trespass laws be invalid if it effectuated discrimination? The “sit-in” cases

of the early 1960s presented all these questions and more but did

not resolve them.1358 The basics of an answer came in Moose Lodge

No. 107 v. Irvis,

1359 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.’ ” 1360 Moreover, although 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

1356 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).

1357 Burton v. Wilmington Parking Authority, 365 U.S. 715, 724 (1961).

1358 See, e.g., the various opinions in Bell v. Maryland, 378 U.S. 226 (1964).

1359 407 U.S. 163 (1972). One provision of the state law was, however, held unconstitutional. That provision required a licensee to observe all its by-laws and therefore mandated the Moose Lodge to follow the discrimination provision of its bylaws. Id. at 177–79.

1360 407 U.S. at 173.

2074 AMENDMENT 14—RIGHTS GUARANTEED
in the club’s enterprise.” 1361 And there was nothing in the licensing relationship here that approached “the symbiotic relationship

between lessor and lessee” that the Court had found in Burton.

1362

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.” 1363 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 action, must be the subject of the complaint.” 1364 Therefore,

the Court found no such nexus between the state and a public utility’s action in terminating service to a customer. Neither the fact

that the business was subject to state regulation, nor that the state

had conferred in effect a monopoly status upon the utility, nor that

in reviewing the company’s tariff schedules the regulatory commission had in effect approved the termination provision (but had not

required the practice, had “not put its own weight on the side of

the proposed practice by ordering it”) 1365 operated to make the utility’s action the state’s action.1366 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

1361 407 U.S. at 176–77.

1362 407 U.S. at 174–75.

1363 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974) (under the

Due Process Clause).

1364 Powe v. Miles, 407 F.2d. 73, 81 (2d Cir. 1968). See also NCAA v. Tarkanian,

488 U.S. 179 (1988) (where individual state has minimal influence over national college athletic association’s activities, the application of association rules leading to a

state university’s suspending its basketball coach could not be ascribed to the state.).

But see Brentwood Academy v. Tennessee Secondary School Athletic Assoc., 531 U.S.

288 (2001) (where statewide public school scholastic association is “overwhelmingly”

composed of public school officials for that state, this “entwinement” is sufficient to

ascribe actions of association to state).

1365 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. 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.

1366 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).

AMENDMENT 14—RIGHTS GUARANTEED 2075
under color of the challenged statute, but also that its actions are

properly attributable to the State. . . .” 1367 And the actions are to

be attributable to the state apparently only if the state compelled

the actions and not if the state merely established the process through

statute or regulation under which the private party acted.

Thus, when a private party, having someone’s goods in his possession and seeking to recover the charges owned on storage of the

goods, acts under a permissive state statue to sell the goods and

retain his charges out of the proceeds, his actions are not governmental action and need not follow the dictates of the Due Process

Clause.1368 Or, where a state workers’ compensation statute was

amended to allow, but not require, an insurer to suspend payment

for medical treatment while the necessity of the treatment was being evaluated by an independent evaluator, this action was not fairly

attributable to the state, and thus pre-deprivation notice of the suspension was not required.1369 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.1370

In a few cases, the Court has indicated that discriminatory action by private parties may be precluded by the Fourteenth Amendment if the particular party involved is exercising a “public function.” 1371 For instance, in Marsh v. Alabama,

1372 a Jehovah’s Witness

had been convicted of trespass after passing out literature on the

streets of a company-owned town, but the Court reversed. It is not

entirely clear from the Court’s opinion 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” and that it was “like” a state.

“The more an owner, for his advantage, opens up his property for

1367 Flagg Bros. v. Brooks, 436 U.S. 149, 156 (1978) (due process).

1368 436 U.S. at 164–66. If, however, a state officer acts with the private party

in securing the property in dispute, that is sufficient to create the requisite state

action and the private party may be subjected to suit if the seizure does not comport with due process. Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).

1369 American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999).

1370 Blum v. Yaretsky, 457 U.S. 991 (1982).

1371 This rationale is one of those that emerges from various opinions in Terry

v. Adams, 345 U.S. 461 (1953) (holding that a political association limited to white

voters that held internal elections to designate which of its member would run in

the Texas Democratic primaries was acting as part of the state-established electoral

system).

1372 326 U.S. 501 (1946).

2076 AMENDMENT 14—RIGHTS GUARANTEED
use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use

it.” 1373 A subsequent attempt to extend Marsh to privately owned

shopping centers was at first successful, but was soon turned back,

resulting in a sharp curtailment of the “public function” doctrine.1374

Attempts to apply this theory to other kinds of private conduct,

such as operation of private utilities,1375 use of permissive state laws

to secure property claimed to belong to creditors,1376 maintaining

schools for “problem” children referred by public institutions,1377 provision of workers’ compensation coverage by private insurance companies,1378 and operation of nursing homes in which patient care is

almost all funded by public resources,1379 proved unavailing. 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.” 1380 The “public function” doctrine is to be limited to a delegation of “a power ‘traditionally exclusively reserved to the State.’ ” 1381

Public function did play an important part, however, in the Court’s

finding state action in the exercise of peremptory challenges in jury

selection by non-governmental parties. Using tests developed in an

earlier case involving garnishment and attachment,1382 the Court

found state action in the racially discriminatory use of such challenges during voir dire in a civil case.1383 The Court first asked

“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 considered 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

1373 326 U.S. at 506.

1374 See Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S.

308 (1968), limited in Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), and overruled in

Hudgens v. NLRB, 424 U.S. 507 (1976). The Marsh principle is good only when private property has taken on all the attributes of a municipality. Id. at 516–17.

1375 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974).

1376 Flagg Bros. v. Brooks, 436 U.S. 149, 157–159 (1978).

1377 Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982).

1378 American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999).

1379 Blum v. Yaretsky, 457 U.S. 991, 1011–1012 (1982).

1380 Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982).

1381 Flagg Bros. v. Brooks, 436 U.S. 149, 157 (1978) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974)).

1382 Lugar v. Edmondson Oil Corp., 457 U.S. 922 (1982).

1383 Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).

AMENDMENT 14—RIGHTS GUARANTEED 2077
by the incidents of governmental authority.” 1384 There was no question that the 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.

In addition, jury selection was found to be 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.1385 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.” 1386 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.” 1387

The Court soon applied these same principles to hold that the

exercise of peremptory challenges by the defense in a criminal case

also constitutes state action,1388 even though in a criminal case it

is the government and the defendant who are adversaries. The same

generalities apply with at least equal force: there is overt and significant governmental assistance in creating and structuring the process, a criminal jury serves an important governmental function and

its selection is also important, and the courtroom setting intensifies harmful effects of discriminatory actions. An earlier case 1389 holding that a public defender was not a state actor when engaged in

general representation of a criminal defendant was distinguished,

with the Court emphasizing that “exercise of a peremptory challenge differs significantly from other actions taken in support of a

1384 Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620–22 (1991) (citations

omitted).

1385 500 U.S. at 624, 625.

1386 500 U.S. at 628.

1387 500 U.S. at 639, 643.

1388 Georgia v. McCollum, 505 U.S. 42 (1992). It was, of course, beyond dispute

that a prosecutor’s exercise of peremptory challenges constitutes state action. See

Swain v. Alabama, 380 U.S. 202 (1965); Batson v. Kentucky, 476 U.S. 79 (1986).

1389 Polk County v. Dodson, 454 U.S. 512 (1981).

2078 AMENDMENT 14—RIGHTS GUARANTEED
defendant’s defense,” because it involves selection of persons to wield

governmental power.1390

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 subject to constitutional constraints. Many lower courts had held state action to exist

in such circumstances.1391 However the question might have been

answered under prior Court holdings, it is evident that the more

recent cases would not generally support a finding of state action

in these cases. In Rendell-Baker v. Kohn,

1392 a 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,

1393 a 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.1394 “That programs undertaken by the State result in substantial funding of the activities of a private entity is no more per1390 505 U.S. at 54. Justice O’Connor, again dissenting, pointed out that the Court’s

distinction was inconsistent with Dodson’s declaration that public defenders are not

vested with state authority “when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Id. at 65–66. Justice Scalia, also dissenting again, decried reduction of Edmonson “to the terminally absurd: A criminal

defendant, in the process of defending himself against the state, is held to be acting

on behalf of the state.” Id. at 69–70. Chief Justice Rehnquist, who had dissented in

Edmonson, concurred in McCollum in the belief that it was controlled by Edmonson,

and Justice Thomas, who had not participated in Edmonson, expressed similar views

in a concurrence.

1391 On funding, see Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959

(4th Cir. 1963), cert. denied, 376 U.S. 938 (1964); Kerr v. Enoch Pratt Free Library,

149 F.2d 212 (4th Cir.), cert. denied, 326 U.S. 721 (1945); Christhilf v. Annapolis

Emergency Hosp. Ass’n, 496 F.2d 174 (4th Cir. 1974). But cf. Greco v. Orange Mem.

Hosp. Corp., 513 F.2d 873 (5th Cir.), cert. denied, 423 U.S. 1000 (1975). On tax benefits, see Green v. Connally, 330 F. Supp. 1150 (D.D.C.) (three-judge court), aff’d.

sub nom. Coit v. Green, 404 U.S. 997 (1971);McGlotten v. Connally, 338 F. Supp.

448 (D.D.C. 1972); Jackson v. Statler Foundation, 496 F.2d 623 (2d Cir. 1974). But

cf. New York City Jaycees v. United States Jaycees, 512 F.2d 856 (2d Cir. 1976);

Greenya v. George Washington Univ., 512 F.2d 556 (D.C. Cir.), cert. denied, 423 U.S.

995 (1975).

1392 457 U.S. 830 (1982).

1393 457 U.S. 991 (1982).

1394 The rules developed by the Court for general 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 AmendAMENDMENT 14—RIGHTS GUARANTEED 2079
suasive 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.” 1395

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 1396 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, although the Court

had recognized due process violations for failure to provide adequate medical care to incarcerated prisoners,1397 and for failure to

ensure reasonable safety for involuntarily committed mental patients,1398 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

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.” 1399 Although 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.” 1400 “[I]t is well to remember . . . that the harm

was inflicted not by the State of Wisconsin, but by [the child’s] father.” 1401

Judicial inquiry into the existence of “state action” may lead to

different results depending on what remedy is sought to be enment,” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) quoting Jackson v. Metropolitan

Edison Co., 419 U.S. 345, 350 (1974); Cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163

(1972), 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.”

Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). To the latter point, see Flagg Bros. v.

Brooks, 436 U.S. 149, 166 (1978); Jackson v. Metropolitan Edison Co., 419 U.S. 345,

357 (1974).

1395 457 U.S. at 1011.

1396 489 U.S. 189, 197 (1989).

1397 Estelle v. Gamble, 429 U.S. 97 (1976).

1398 Youngberg v. Romeo, 457 U.S. 307 (1982).

1399 489 U.S. at 201.

1400 489 U.S. at 202.

1401 489 U.S. at 203.

2080 AMENDMENT 14—RIGHTS GUARANTEED
forced. While cases may be brought against a private actor to compel him to halt his discriminatory action (for example, to enjoin him

to admit blacks to a lunch counter), one could just as readily bring

suit against the government to compel it to cease aiding the private actor in his discriminatory conduct. Enforcing the latter remedy might well avoid constitutional issues that an order directed to

the private party would raise.1402 In either case, however, 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,

1403 the Court struck down the

provision of free textbooks by a state to racially segregated private

schools (which were set up 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 other invidious discriminations.” 1404 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

1402 For example, if a Court finds a relationship between the state and a discriminating private group (which may have rights of association protected by the First

Amendment), a remedy directed against the relationship might succeed, where a direction to such group to eliminate such discrimination might not. 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).

1403 413 U.S. 455 (1973).

1404 Gilmore v. City of Montgomery, 417 U.S. 556, 568–69 (1974) (quoting Norwood

v. Harrison, 413 U.S. 455, 466, 467 (1973)).

AMENDMENT 14—RIGHTS GUARANTEED 2081
those users as to warrant court intervention on constitutional

grounds.” 1405 The lower court was directed to sift facts and weigh

circumstances on a case-by-case basis in making determinations.1406

It should be noted, however, that, without mentioning these cases,

the Court has interposed a potentially significant barrier to use of

the principle set out in them. In a 1976 decision, which it has since

expanded, 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 show that revocation of the benefit would cause

the institutions to cease the complained-of conduct.1407

“Person”.—In the case in which it was first called upon to interpret this clause, the Court doubted whether “any action of a State

not directed by way of discrimination against the negroes as a class,

or on account of their race, will ever be held to come within the

purview of this provision.” 1408 Nonetheless, in deciding the Granger

Cases shortly thereafter, the Justices, as with the due process clause,

seemingly entertained no doubt that the railroad corporations were

entitled to invoke the protection of the clause.1409 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.” 1410 The word has been given the broadest possible meaning.

1405 Gilmore v. City of Montgomery, 417 U.S. 556, 570 (1974).

1406 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.” 417 U.S. at 573–74. See also Blum v. Yaretsky, 457 U.S.

991 (1982) (plaintiffs unsuccessfully sued public officials, objecting not to regulatory

decision made by the officials as to Medicaid payments, but to decisions made by

the nursing home in discharging and transferring patients).

1407 Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976).

See id. at 46, 63–64 (Justice Brennan concurring and dissenting).

1408 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873). Cf. Weber v. Aetna

Casualty & Surety Co., 406 U.S. 164, 177 (1972) (Justice Rehnquist dissenting).

1409 Chicago, B. & Q. R.R. v. Iowa, 94 U.S. 155 (1877); Peik v. Chicago & N.W.

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).

1410 Santa Clara County v. Southern Pac. R.R., 118 U.S. 394, 396 (1886). The

background and developments from this utterance are treated in H. GRAHAM, EVERYMAN’S CONSTITUTION: HISTORICAL ESSAYS ON THE FOURTEENTH AMENDMENT, THE CONSPIRACY THEORY,

2082 AMENDMENT 14—RIGHTS GUARANTEED
“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. . . .” 1411 The only qualification is

that a municipal corporation cannot invoke the clause against its

state.1412

“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.1413 As to business

entities, it was first held that a foreign corporation that was not

doing business in a state in a manner that subjected it to the process of a state’s courts was not “within the jurisdiction” of the state

and could not complain that resident creditors were given preferences in the distribution of assets of an insolvent corporation.1414

This holding was subsequently qualified, however, with the Court

holding that a foreign corporation seeking to recover possession of

property wrongfully taken in one state, but suing in another state

in which it was not licensed to do business, was “within the jurisdiction” of the latter state, so that unequal burdens could not be

imposed on the maintenance of the suit.1415 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.1416 On the other hand, if 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.1417

AND AMERICAN CONSTITUTIONALISM chs. 9, 10, and pp. 566–84 (1968). Justice Black, in

Connecticut Gen. 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.

1411 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).

1412 City of Newark v. New Jersey, 262 U.S. 192 (1923); Williams v. Mayor of

Baltimore, 289 U.S. 36 (1933).

1413 But see Plyler v. Doe, 457 U.S. 202, 210–16 (1982) (explicating meaning of

the phrase in the context of holding that aliens illegally present in a state are “within

its jurisdiction” and may thus raise equal protection claims).

1414 Blake v. McClung, 172 U.S. 239, 261 (1898); Sully v. American Nat’l Bank,

178 U.S. 289 (1900).

1415 Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262 U.S. 544

(1923).

1416 Hillsborough v. Cromwell, 326 U.S. 620 (1946).

1417 Wheeling Steel Corp. v. Glander, 337 U.S. 562 (1949); Hanover Fire Ins.

Co. v. Harding, 272 U.S. 494 (1926). See also Philadelphia Fire Ass’n v. New York,

119 U.S. 110 (1886).

AMENDMENT 14—RIGHTS GUARANTEED 2083
Equal Protection: Judging Classifications by Law

A guarantee of equal protection of the laws was contained in

every draft leading up to the final version of section 1 of the Fourteenth Amendment.1418 The desire to provide a firm constitutional

basis for already-enacted civil rights legislation 1419 and to place repeal beyond the accomplishment of a simple majority in a future

Congress was important to its sponsors.1420 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.1421 Although the Court early recognized that AfricanAmericans were the primary intended beneficiaries of the protections thus adopted,1422 the spare language was majestically unconfined to so limited a class or to so limited a purpose. Though efforts

to argue for an expansive interpretation met with little initial success,1423 the equal protection standard ultimately came to be applicable to all classifications by legislative and other official bodies. Now,

the Equal Protection Clause looms large in the fields of civil rights

and fundamental liberties 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.1424 It is still most often applied there, although it

1418 The story is recounted in J. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956). See also JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION (B.

Kendrick, ed. 1914). The floor debates are collected in 1 STATUTORY HISTORY OF THE

UNITED STATES: CIVIL RIGHTS 181 (B. Schwartz, ed. 1970).

1419 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).

1420 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).

1421 TENBROEK, EQUAL UNDER LAW (rev. ed. 1965); Frank & Munro, The Original

Understanding of ‘Equal Protection of the Laws’, 50 COLUM. L. REV. 131 (1950); Bickel,

The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955);

see also 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).

1422 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873).

1423 In Buck v. Bell, 274 U.S. 200, 208 (1927), Justice Holmes characterized the

Equal Protection Clause as “the usual last resort of constitutional arguments.”

1424 See Yick Wo v. Hopkins, 118 U.S. 356 (1886) (discrimination against Chinese on the West Coast).

2084 AMENDMENT 14—RIGHTS GUARANTEED
appears in many other contexts as well,1425 including so-called “classof-one” challenges.1426 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.” 1427 Thus, the mere fact of classification will not void legislation,1428 because in the exercise of its powers a legislature has

considerable discretion in recognizing the differences between and

among persons and situations.1429 “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.” 1430 Or, more succinctly, “statutes create many classifications which do not deny equal

1425 Vacco v. Quill, 521 U.S. 793 (1997) (assisted suicide prohibition does not violate Equal Protection Clause by distinguishing between terminally ill patients on

life-support systems who are allowed to direct the removal of such systems and patients who are not on life support systems and are not allowed to hasten death by

self-administering prescribed drugs).

1426 The Supreme Court has recognized successful equal protection claims brought

by a class-of-one, where a plaintiff alleges that she has been intentionally treated

differently from others similarly situated and that there is no rational basis for that

difference. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)

(village’s demand for an easement as a condition of connecting the plaintiff’s property to the municipal water supply was irrational and wholly arbitrary). However,

the class-of-one theory, which applies with respect to legislative and regulatory action, does not apply in the public employment context. Engquist v. Oregon Department of Agriculture, 128 S. Ct. 2146, 2149 (2008) (allegation that plaintiff was fired

not because she was a member of an identified class but simply for “arbitrary, vindictive, and malicious reasons” does not state an equal protection claim). In Engquist,

the Court noted that “the government as employer indeed has far broader powers

than does the government as sovereign,” id. at 2151 (quoting Waters v. Churchill,

511 U.S. 661, 671 (1994), and that it is a “common-sense realization” that government offices could not function if every employment decision became a constitutional matter. Id. at 2151, 2156.

1427 Tigner v. Texas, 310 U.S. 141, 147 (1980).

1428 Atchison, T. & S.F.R.R. v. Matthews, 174 U.S. 96, 106 (1899). From the same

period, see also 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). For later cases, see 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).

1429 Barrett v. Indiana, 229 U.S. 26 (1913).

1430 Barbier v. Connolly, 113 U.S. 27, 32 (1885).

AMENDMENT 14—RIGHTS GUARANTEED 2085
protection; it is only ‘invidious discrimination’ which offends the Constitution.” 1431

How then is the line between permissible and invidious classification to be determined? In Lindsley v. Natural Carbonic Gas Co.,

1432

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 F.S. Royster Guano Co. v. Virginia,

1433 the court

put forward the following test: “[T]he 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.” 1434 Use of the latter standard did in fact result in some invalidations.1435

1431 Ferguson v. Skrupa, 372 U.S. 726, 732 (1963); Williamson v. Lee Optical

Co., 348 U.S. 483, 489 (1955).

1432 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).

1433 253 U.S. 412 (1920).

1434 253 U.S. at 415. See also Brown-Forman Co. v. Kentucky, 217 U.S. 563,

573 (1910).

1435 E.g., F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920) (striking down

a tax on the out-of-state income of domestic corporations that did business in the

2086 AMENDMENT 14—RIGHTS GUARANTEED
But then, coincident with the demise of substantive due process in the area of economic regulation,1436 the Court reverted to

the former standard, deferring to the legislative judgment on questions of economics and related matters; even when an impermissible purpose could have been attributed to the classifiers it was

usually possible to conceive of a reason that would justify the classification.1437 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 overand under-inclusive classifications.1438

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-stepat-a-time rationale,1439 and it has applied this relaxed standard to

state, when domestic corporations that engaged only in out-of-state business were

exempted); Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935) (striking down a

graduated tax on gross receipts as arbitrary because it was insufficiently related to

net profits); Mayflower Farms v. Ten Eyck, 297 U.S. 266 (1936) (striking down a

milk-price-control regulation that distinguished between certain milk producers based

on their dates of entry into the market).

1436 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.”

1437 E.g., Tigner v. Texas, 310 U.S. 141 (1940) (exclusion of agriculture and livestock from price-fixing statute justified by heightened concerns surrounding concentrations of power in other industries); Kotch v. Board of River Port Pilot Comm’rs,

330 U.S. 552 (1947) (where apprenticeship was a requirement to obtain a river pilot

license, allowing river pilots to apprentice mostly friends and relatives justified upon

desire to create a cohesive piloting community); Goesaert v. Cleary, 335 U.S. 464

(1948) (court will not question legislature’s determination that allowing women to

bartend gives rise to moral and social problems, but that such problems are relieved when a barmaid’s husband or father is the owner of the bar); Railway Express Agency v. New York, 336 U.S. 106 (1949) (upholding ban on advertising on the

side of delivery trucks except by the business employing the truck, as legislature

could determine that the nature and extent of the distraction presented by the latter advertising did not present the same threat to traffic); McGowan v. Maryland,

366 U.S. 420 (1961) (allowing the sale of certain products on Sunday, while prohibiting the sale of others, does not exceed a state’s wide discretion to affect some groups

of citizens differently than others).

1438 Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955); McDonald v. Board

of Election Comm’rs, 394 U.S. 802, 809 (1969); Schilb v. Kuebel, 404 U.S. 357, 364–65

(1971); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976); Minnesota v. Clover

Leaf Creamery Co., 449 U.S. 456, 466 (1981).

1439 City of New Orleans v. Dukes, 427 U.S. 297, 303–04 (1976); City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369 (1974).

AMENDMENT 14—RIGHTS GUARANTEED 2087
social welfare regulations.1440 In other cases, it has used 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,1441 although it has usually ended

up upholding the classification. Finally, purportedly applying the rational basis test, the Court has invalidated some classifications in

the areas traditionally most subject to total deference.1442

Attempts to develop a consistent principle have so far been unsuccessful. In Railroad Retirement Board v. Fritz,

1443 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 un1440 Dandridge v. Williams, 397 U.S. 471, 485–86 (1970); Jefferson v. Hackney,

406 U.S. 535, 549 (1972). See also New York City Transit Auth. v. Beazer, 440 U.S.

568, 587–94 (1979).

1441 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).

1442 E.g., Lindsey v. Normet, 405 U.S. 56, 74–79 (1972) (requirement for tenant

to post forfeitable bond for twice the amount of rent expected to accrue pending appellate decision on landlord-tenant dispute violates Equal Protection); Eisenstadt v.

Baird, 405 U.S. 438 (1972) (state cannot provide dissimilar access to contraceptives

for married and unmarried persons); James v. Strange, 407 U.S. 128 (1972) (statute

allowing state to seek recoupment of attorney fees from indigent defendants who

were provided legal counsel may not treat defendants differently from other civil

debtors); Department of Agriculture v. Moreno, 413 U.S. 528 (1973) (state may not

exclude households containing a person unrelated to other members of the household from food stamp program); 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), used 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.

1443 449 U.S. 166, 174–79 (1980). The quotation is at 176–77 n.10. The extent of

deference is notable, inasmuch as the legislative history seemed clearly to establish

that the purpose the Court purported to discern as the basis for the classification

was not the congressional purpose at all. Id. at 186–97 (Justice Brennan dissenting). The Court observed, however, that it was “constitutionally irrelevant” whether

the plausible basis was in fact within Congress’s 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).

2088 AMENDMENT 14—RIGHTS GUARANTEED
der 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,

1444 in an opinion written by a

different Justice,1445 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.1446

In short, it is uncertain which formulation of the rational basis

standard the Court will adhere to.1447 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.1448 Clarity in

this area, then, must await presentation to the Court of a classification that 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

1444 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.

1445 Justice Blackmun wrote the Court’s opinion in Wilson, Justice Rehnquist in

Fritz.

1446 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461–70 (1981). The

quoted phrase is at 466.

1447 In City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (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).

1448 The exception is Reed v. Reed, 404 U.S. 71 (1971), which, though it purported to apply Royster Guano, may have applied heightened scrutiny. See Zobel v.

Williams, 457 U.S. 55, 61–63 (1982), in which the Court found the classifications

not rationally related to the goals, without discussing which standard it was using.

AMENDMENT 14—RIGHTS GUARANTEED 2089
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,

1449 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 1450 purported to enunciate no per se rule, however, although subsequent summary treatment of a host of segregation measures may have implicitly done so, until in striking down

state laws prohibiting interracial marriage or cohabitation the Court

declared that racial classifications “bear a far heavier burden of justification” than other classifications and were invalid because no “overriding statutory purpose” 1451 was shown and they were not necessary to some “legitimate overriding purpose.” 1452 “A racial classification,

regardless of purported motivation, is presumptively invalid and can

be upheld only upon an extraordinary justification.” 1453 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.1454 A measure that does not draw a distinction explicitly

on race but that does draw a line between those who seek to use

the law to do away with or modify racial discrimination and those

1449 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.

1450 Brown v. Board of Education, 347 U.S. 483 (1954).

1451 McLaughlin v. Florida, 379 U.S. 184, 192, 194 (1964).

1452 Loving v. Virginia, 388 U.S. 1, 11 (1967). In Lee v. Washington, 390 U.S.

333 (1968), it was indicated that preservation of discipline and order in a jail might

justify racial segregation there if shown to be necessary.

1453 Personnel Administrator v. Feeney, 442 U.S. 256, 272 (1979), quoted in Washington v. Seattle School Dist., 458 U.S. 457, 485 (1982).

1454 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).

2090 AMENDMENT 14—RIGHTS GUARANTEED
who oppose such efforts does in fact create an explicit racial classification and is constitutionally suspect.1455

Toward the end of the Warren Court, there emerged a trend to

treat classifications on the basis of nationality or alienage as suspect,1456 to accord sex classifications a somewhat heightened traditional review while hinting that a higher standard might be appropriate if such classifications passed lenient review,1457 and to pass

on statutory and administrative treatments of illegitimates inconsistently.1458 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.1459

However, in a major evaluation of equal protection analysis early

in this period, the Court reaffirmed a two-tier approach, determining that where the interests involved that did not occasion strict

scrutiny, the Court would decide the case on minimum rationality

standards. Justice Powell, writing for the Court in San Antonio School

Dist. v. Rodriguez,

1460 decisively rejected 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,1461 a holding that has several times been strongly

reaffirmed by the Court.1462 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 sub1455 Hunter v. Erickson, 393 U.S. 385 (1969); Washington v. Seattle School Dist.,

458 U.S. 457 (1982).

1456 Graham v. Richardson, 403 U.S. 365, 371–72 (1971).

1457 Reed v. Reed, 404 U.S. 71 (1971); for the hint, see Eisenstadt v. Baird, 405

U.S. 438, 447 n.7 (1972).

1458 See Levy v. Louisiana, 391 U.S. 68 (1968) (strict review); Labine v. Vincent,

401 U.S. 532 (1971) (lenient review); Weber v. Aetna Casualty & Surety Co., 406

U.S. 164 (1972) (modified strict review).

1459 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).

1460 San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973).

1461 411 U.S. at 44–45. The Court asserted that only when there is an absolute

deprivation of some right or interest because of inability to pay will there be strict

scrutiny. Id. at 20.

1462 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).

AMENDMENT 14—RIGHTS GUARANTEED 2091
stantially related to achievement of those objectives.” 1463 And classifications that disadvantage illegitimates are subject to a similar

though less exacting scrutiny of purpose and fit.1464 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.1465

The Court has so far resisted further expansion of classifications that must be justified by a standard more stringent than rational basis. For example, the Court has held that age classifica1463 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 resultoriented substitute for more critical analysis, that approach—with its narrowly limited ‘upper tier’—now has substantial precedential support. As has been true of Reed

and its progeny, our decision today will be viewed by some as a ‘middle-tier’ approach. While I would not endorse that characterization and would not welcome a

further subdividing of equal protection analysis, candor compels the recognition that

the relatively deferential ‘rational basis’ standard of review normally applied takes

on a sharper focus when we address a gender-based classification. So much is clear

from our recent cases.” Id. at 210, n.*. Justice Stevens wrote that in his view the

two-tiered analysis does not describe a method of deciding cases “but rather is a

method the Court has employed to explain decisions that actually apply a single

standard in a reasonably consistent fashion.” Id. at 211, 212. Chief Justice Burger

and Justice Rehnquist would employ the rational basis test for gender classification. Id. at 215, 217 (dissenting). Occasionally, because of the particular subject matter, the Court has appeared to apply a rational basis standard in fact if not in doctrine, E.g., Rostker v. Goldberg, 453 U.S. 57 (1981) (military); Michael M. v. Superior

Court, 450 U.S. 464 (1981) (application of statutory rape prohibition to boys but not

to girls). Four Justices in Frontiero v. Richardson, 411 U.S. 677, 684–87 (1973), were

prepared to find sex a suspect classification, and in Mississippi Univ. for Women v.

Hogan, 458 U.S. 718, 724 n.9 (1982), the Court appeared to leave open the possibility that at least some sex classifications may be deemed suspect.

1464 Mills v. Habluetzel, 456 U.S. 91, 99 (1982); Parham v. Hughes, 441 U.S.

347 (1979); Lalli v. Lalli, 439 U.S. 259 (1978); Trimble v. Gordon, 430 U.S. 762 (1977).

In Mathews v. Lucas, 427 U.S. 495, 506 (1976), it was said that “discrimination against

illegitimates has never approached the severity or pervasiveness of the historic legal and political discrimination against women and Negroes.” Lucas sustained a statutory scheme virtually identical to the one struck down in Califano v. Goldfarb, 430

U.S. 199 (1977), except that the latter involved sex while the former involved illegitimacy.

1465 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).

2092 AMENDMENT 14—RIGHTS GUARANTEED
tions are neither suspect nor entitled to intermediate scrutiny.1466

Although the Court resists the creation of new suspect or “quasisuspect” classifications, it may still, on occasion, apply the Royster

Guano rather than the Lindsley standard of rationality.1467

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.1468

It is thought 1469 that the “fundamental right” theory had its origins in Skinner v. Oklahoma ex rel. Williamson,

1470 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.” 1471 A stiffening of the traditional test could be noted in the opinion of the Court striking down

certain restrictions on voting eligibility 1472 and the phrase “compelling state interest” was used several times in Justice Brennan’s opinion in Shapiro v. Thompson.

1473 Thereafter, the phrase was used in

1466 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (upholding

mandatory retirement at age 50 for state police); Vance v. Bradley, 440 U.S. 93 (1979)

(mandatory retirement at age 60 for foreign service officers); Gregory v. Ashcroft,

501 U.S. 452 (1991) (mandatory retirement at age 70 for state judges). See also City

of Cleburne v. Cleburne Living Center, 473 U.S. 432, 442 (1985) (holding that a lower

court “erred in holding mental retardation a quasi-suspect classification calling for

a more exacting standard of judicial review than is normally accorded economic and

social legislation”).

1467 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); see discussion, supra.

1468 Kramer v. Union Free School Dist., 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 638 (1969).

1469 Shapiro v. Thompson, 394 U.S. at 660 (Justice Harlan dissenting).

1470 316 U.S. 535, 541 (1942).

1471 Reynolds v. Sims, 377 U.S. 533, 562 (1964).

1472 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).

1473 394 U.S. 618, 627, 634, 638 (1969).

AMENDMENT 14—RIGHTS GUARANTEED 2093
several voting cases in which restrictions were voided, and the doctrine was asserted in other cases.1474

Although no opinion of the Court attempted to delineate the process by which certain “fundamental” rights were differentiated from

others,1475 it was evident from the cases that the right to vote,1476

the right of interstate travel,1477 the right to be free of wealth distinctions in the criminal process,1478 and the right of procreation 1479 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. In Rodriguez,

1480 the Court also sought to rationalize and restrict this branch of active review, as that case involved

both a claim that de facto wealth classifications should be suspect

and a claim that education was a fundamental interest, so that providing less of it to people because they were poor triggered a compelling state interest standard. The Court readily agreed that education was an important value in our society. “But the importance

of a service performed by the State does not determine whether it

must be regarded as fundamental for purposes of examination under the Equal Protection Clause. . . . [T]he answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.” 1481 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 did not ultimately prevent the Court’s adoption of a “three-tier” or “sliding-tier” standard of review, Justice Powell’s admonition that only interests expressly or impliedly protected

by the Constitution should be considered “fundamental” did not prevent the expansion of the list of such interests. The difficulty was

that Court decisions on the right to vote, the right to travel, the

right to procreate, as well as other rights, premise the constitutional violation to be of the Equal Protection Clause, which does

not itself guarantee the right but prevents the differential govern1474 Kramer v. Union Free School Dist., 395 U.S. 621 (1969); Cipriano v. City of

Houma, 395 U.S. 701 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970);

Dunn v. Blumstein, 405 U.S. 330 (1972).

1475 This indefiniteness has been a recurring theme in dissents. E.g., Shapiro v.

Thompson, 394 U.S. 618, 655 (1969) (Justice Harlan); Weber v. Aetna Casualty &

Surety Co., 406 U.S. 164, 177 (1972) (Justice Rehnquist).

1476 E.g., Dunn v. Blumstein, 405 U.S. 330 (1972).

1477 E.g., Shapiro v. Thompson, 394 U.S. 618 (1969).

1478 E.g., Tate v. Short, 401 U.S. 395 (1971).

1479 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).

1480 San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973).

1481 411 U.S. at 30, 33–34. But see id. at 62 (Justice Brennan dissenting), 70,

110–17 (Justices Marshall and Douglas dissenting).

2094 AMENDMENT 14—RIGHTS GUARANTEED
mental treatment of those attempting to exercise the right.1482 Thus,

state limitation on the entry into marriage was soon denominated

an incursion on a fundamental right that required a compelling justification.1483 Although denials of public funding of abortions were

held to implicate no fundamental interest—abortion’s being a fundamental interest—and no suspect classification—because only poor

women needed public funding 1484—other denials of public assistance because of illegitimacy, alienage, or sex have been deemed to

be governed by the same standard of review as affirmative harms

imposed on those grounds.1485 And, in Plyler v. Doe,

1486 the complete denial of education to the children of illegal aliens was found

subject to intermediate scrutiny and invalidated.

An open question after Obergefell v. Hodges, the 2015 case finding the right to same-sex marriage is protected by the Constitution, is the extent to which the Court is reconceptualizing equal protection analysis.1487 In Obergefell, the Court concluded that state

laws that distinguished between marriages between same- and

opposite-sex married couples violated the Equal Protection Clause.1488

However, in lieu of more traditional equal protection analysis, the

Obergefell Court did not identify whether the base classification made

by the challenged state marriage laws was “suspect.” Nor did the

Obergefell Court engage in a balancing test to determine whether

the purpose of the state classification was tailored to or fit the contours of the classification. Instead, the Court merely declared that

state laws prohibiting same-sex marriage “abridge[d] central precepts of equality.” 1489 It remains to be seen whether Obergefell signals a new direction for the Court’s equal protection jurisprudence

or is merely an anomaly that indicates the fluctuating nature of

active review, as the doctrine has been subject to shifting majorities and varying degrees of concern about judicial activism and judicial restraint. Nonetheless, as will be more fully reviewed below,

the sliding scale of review underlies many of the Court’s most recent equal protection cases, even if the jurisprudence and its doctrinal basis have not been fully elucidated or consistently endorsed

by the Court.

1482 Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at 66–68 (Justice

Brennan concurring), 78–80 (Justice O’Connor concurring) (travel).

1483 Zablocki v. Redhail, 434 U.S. 374 (1978).

1484 Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980).

1485 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).

1486 457 U.S. 202 (1982).

1487 See 576 U.S. ___, No. 14–556, slip op. at 2, 28 (2015).

1488 Id. at 22.

1489 Id.

AMENDMENT 14—RIGHTS GUARANTEED 2095
Testing Facially Neutral Classifications Which Impact on

Minorities

A classification made 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.1490 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.

In Washington v. Davis, the Court held that is necessary that

one claiming harm based on the disparate or disproportionate impact of a facially neutral law prove intent or motive to discriminate.1491 For a time, 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, lower courts had questioned this proposition.1492 Further, the Court had considered various civil rights statutes which provided that when employment practices are challenged for disqualifying a disproportionate numbers

1490 See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886); Guinn v. United States,

238 U.S. 347 (1915); Lane v. Wilson, 307 U.S. 268 (1939); Gomillion v. Lightfoot,

364 U.S. 339 (1960). Government may make a racial classification that, for example, does not separate whites from blacks but that by focusing on an issue of

racial import creates a classification that is suspect. Washington v. Seattle School

Dist., 458 U.S. 457, 467–74 (1982).

1491 426 U.S. 229, 242 (1976) (“[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.”) 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). See also 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).

1492 The principal case was Palmer v. Thompson, 403 U.S. 217 (1971), in which

a 5-to-4 majority refused to order a city to reopen its swimming pools closed allegedly to avoid complying with a court order to desegregate them. The majority opinion strongly warned against voiding governmental action upon an assessment of official motive, id. at 224–26, but it also drew the conclusion (and the Davis Court

read it as actually deciding) that, because 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).

2096 AMENDMENT 14—RIGHTS GUARANTEED
of blacks, discriminatory purpose need not be proved and that demonstrating a rational basis for the challenged practices was not a

sufficient defense.1493 Thus, the lower federal courts developed a constitutional “disproportionate impact” analysis under which, absent

some justification going substantially beyond what would be necessary to validate most other classifications, a violation could be established without regard to discriminatory purpose by showing that

a statute or practice adversely affected a class.1494 These cases were

disapproved in Davis, but the Court noted 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.” 1495

The application of Davis in the following Terms led to both elucidation and not a little confusion. Looking to a challenged zoning

decision of a local board that had a harsher impact upon blacks

1493 Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975). The Davis Court adhered to this reading of Title VII, merely

refusing to import the statutory standard into the constitutional standard. Washington v. Davis, 426 U.S. 229, 238–39, 246–48 (1976). Subsequent cases involving gender discrimination raised the question of the vitality of Griggs, General Electric Co.

v. Gilbert, 429 U.S. 125 (1976); Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), but

the disagreement among the Justices appears to be whether Griggs applies to each

section of the antidiscrimination provision of Title VII. See Dothard v. Rawlinson,

433 U.S. 321 (1977); Furnco Const. Co. v. Waters, 438 U.S. 567 (1978). But see General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375 (1982) (unlike Title

VII, under 42 U.S.C. § 1981, derived from the Civil Rights Act of 1866, proof of discriminatory intent is required).

1494 See Washington v. Davis, 426 U.S. 229, 244 n.12 (1976) (listing and disapproving cases). Cases that the Court did not cite include those in which the Fifth

Circuit wrestled with the distinction between de facto and de jure segregation. 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 therefore that a school board decision that results in segregation is

intentional in the constitutional sense, regardless of its motivation. United States v.

Texas Educ. Agency, 532 F.2d 380 (5th Cir.), vacated and remanded for reconsideration in light of Washington v. Davis, 426 U.S. 229 (1976), modified and adhered to,

564 F.2d 162, reh. denied, 579 F.2d 910 (5th Cir. 1977–78), cert denied, 443 U.S. 915

(1979). See also United States v. Texas Educ. Agency, 600 F.2d 518 (5th Cir. 1979).

This form of analysis was, however, substantially cabined in Massachusetts Personnel Adm’r v. Feeney, 442 U.S. 256, 278–80 (1979), although foreseeability as one

kind of proof was acknowledged by Columbus Bd. of Educ. v. Penick, 443 U.S. 449,

464–65 (1979).

1495 Washington v. Davis, 426 U.S. at 242 (1976).

AMENDMENT 14—RIGHTS GUARANTEED 2097
and low-income persons than upon others, the Court in Village of

Arlington Heights v. Metropolitan Housing Dev. Corp.1496 explained

in some detail how inquiry into motivation would work. 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.1497 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.1498 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.” 1499 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 a sex discrimination challenge a state law

giving an absolute preference in civil service hiring to veterans. Veterans who obtain at least a passing grade on the relevant examination may exercise the preference at any time and as many times as

they wish and are ranked ahead of all non-veterans, no matter what

their score. The lower court observed that the statutory and administrative exclusion of women from the armed forces until the recent

1496 429 U.S. 252 (1977).

1497 429 U.S. at 265–66, 270 n.21. See also Mt. Healthy City Bd. of Educ. v.

Doyle, 429 U.S. 274, 284–87 (1977) (once plaintiff shows defendant acted from impermissible motive in not rehiring him, burden shifts to defendant to show result

would have been same in the absence of that motive; constitutional violation not

established merely by showing of wrongful motive); Hunter v. Underwood, 471 U.S.

222 (1985) (circumstances of enactment made it clear that state constitutional amendment requiring disenfranchisement for crimes involving moral turpitude had been

adopted for purpose of racial discrimination, even though it was realized that some

poor whites would also be disenfranchised thereby).

1498 Arlington Heights, 429 U.S. at 266.

1499 429 U.S. 267–68.

2098 AMENDMENT 14—RIGHTS GUARANTEED
past meant that virtually all women were excluded from state civil

service positions and held that results so clearly foreseen could not

be said to be unintended. Reversing, the Supreme Court found that

the veterans preference law was not overtly or covertly genderbased; too many men are non-veterans to permit such a conclusion,

and some women are 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.” 1500

Moreover, in City of Mobile v. Bolden 1501 a plurality of the Court

apparently attempted to do away with the totality of circumstances

test and to separately evaluate 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 by listing

and weighing a series of factors which in totality showed invidious

discrimination, but the Court did not consider whether its ruling

was premised on discriminatory purpose or adverse impact.1502 But

in the plurality opinion in Mobile, each of the factors, viewed “alone,”

was deemed insufficient to show purposeful discrimination.

1503 Moreover, the plurality suggested that some of the factors thought to be

1500 Massachusetts Personnel Adm’r v. Feeney, 442 U.S. 256, 279 (1979). This

case clearly established the application of Davis and Arlington Heights to all nonracial classifications attacked under the Equal Protection Clause. But compare Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979), and Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979), in the context of the quotation in the text. These cases

found the Davis standard satisfied on a showing of past discrimination coupled with

foreseeable impact in the school segregation area.

1501 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.

1502 White v. Regester, 412 U.S. 755 (1972), was the prior case. See also Whitcomb

v. Chavis, 403 U.S. 124 (1971). Justice White, the author of Register, dissented in

Mobile, 446 U.S. at 94, on the basis that “the totality of the facts relied upon by the

District Court to support its inference of purposeful discrimination is even more compelling than that present in White v. Register.” Justice Blackmun, id. at 80, and

Justices Brennan and Marshall, agreed with him as alternate holdings, id. at 94,

103.

1503 446 U.S. at 65–74.

AMENDMENT 14—RIGHTS GUARANTEED 2099
derived from its precedents and forming part of the totality test in

opinions of the lower federal courts—such as minority access to the

candidate selection process, governmental responsiveness to minority interests, and the history of past discrimination—were of quite

limited significance in determining discriminatory intent.1504 But,

contemporaneously with Congress’s statutory rejection of the Mobile plurality standards,1505 the Court, in Rogers v. Lodge,

1506 appeared to disavow much of Mobile and to permit the federal courts

to find discriminatory purpose on the basis of “circumstantial evidence” 1507 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 1508 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.” 1509 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

1504 446 U.S. at 73–74. The principal formulation of the test was in Zimmer v.

McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973), aff’d on other grounds sub nom.

East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 (1976), and its components

are thus frequently referred to as the Zimmer factors.

1505 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.

1506 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.

1507 458 U.S. at 618–22 (describing and disagreeing with the Mobile plurality,

which had used the phrase at 446 U.S. 74). The Lodge Court approved the prior

reference that motive analysis required an analysis of “such circumstantial and direct evidence” as was available. Id. at 618 (quoting Arlington Heights, 429 U.S. at

266).

1508 The Court confirmed the Mobile analysis that the “fundamental interest”

side of heightened equal protection analysis requires a showing of intent when the

criteria of classification are neutral and did not reach the Fifteenth Amendment issue in this case. 458 U.S. at 619 n.6.

1509 458 U.S. at 618 (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)).

2100 AMENDMENT 14—RIGHTS GUARANTEED
exclusion.” 1510 Standing alone this fact was not sufficient, but a historical showing of past discrimination, of systemic exclusion of blacks

from the political process as well as educational segregation and

discrimination, combined with continued unresponsiveness of elected

officials to the needs of the black community, indicated the presence of discriminatory motivation. The Court also looked to the “depressed socio-economic status” of the black population as being both

a result of past discrimination and a barrier to black access to voting power.1511 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 also seemed to allow

what it had said in Davis and Arlington Heights it would not permit.1512 Noting that disproportion alone is insufficient to establish

a violation, the Court nonetheless held that the plaintiff’s showing

that 79 percent of the county’s population was Spanish-surnamed,

whereas 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.1513 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.1514 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.

1510 458 U.S. at 623–24.

1511 458 U.S. at 624–27. The Court also noted the existence of other factors showing the tendency of the system to minimize the voting strength of blacks, including

the large size of the jurisdiction and the maintenance of majority vote and singleseat requirements and the absence of residency requirements.

1512 Castaneda v. Partida, 430 U.S. 482 (1977). The decision was 5-to-4, Justice

Blackmun writing the opinion of the Court and Chief Justice Burger and Justices

Stewart, Powell, and Rehnquist dissenting. Id. at 504–07.

1513 430 U.S. at 493–94. This had been recognized in Washington v. Davis, 426

U.S. 229, 241 (1976), and Village of Arlington Heights v. Metropolitan Housing Dev.

Corp., 429 U.S. 252, 266 n.13 (1977).

1514 Castaneda v. Partida, 430 U.S. 482, 494, 497–99 (1977).

AMENDMENT 14—RIGHTS GUARANTEED 2101
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.1515 It soon, however, entertained cases assailing specific tax laws under this provision,1516

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 governments, might be obnoxious to the constitutional prohibition.” 1517 The

Court observed, however, that the Equal Protection Clause “was not

intended to compel the State to adopt an iron rule of equal taxation” and propounded some conclusions that remain valid today.1518

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.” 1519 A state may adjust its taxing system in such a way as

1515 Davidson v. City of New Orleans, 96 U.S. 97, 106 (1878).

1516 Philadelphia Fire Ass’n v. New York, 119 U.S. 110 (1886); Santa Clara County

v. Southern Pacific R.R., 118 U.S. 394 (1886).

1517 Bell’s Gap R.R. v. Pennsylvania, 134 U.S. 232, 237 (1890).

1518 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 different trades and professions,

and may vary the rates of excise upon various products; it may tax real estate and

personal property in a different manner; it may tax visible property only, and not

tax securities for payment of money; it may allow deductions for indebtedness, or

not allow them. All such regulations, and those of like character, so long as they

proceed within reasonable limits and general usage, are within the discretion of the

state legislature, or the people of the State in framing their Constitution.” 134 U.S.

at 237. See Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973); Kahn v.

Shevin, 416 U.S. 351 (1974); and City of Pittsburgh v. Alco Parking Corp., 417 U.S.

369 (1974).

1519 Louisville Gas Co. v. Coleman, 227 U.S. 32, 37 (1928). Classifications for

purpose of taxation have been held valid in the following situations:

Banks: a heavier tax on banks which make loans mainly from money of depositors than on other financial institutions which make loans mainly from money supplied otherwise than by deposits. First Nat’l Bank v. Tax Comm’n, 289 U.S. 60 (1933).

Bank deposits: a tax of 50 cents per $100 on deposits in banks outside a state

in contrast with a rate of 10 cents per $100 on deposits in the state. Madden v.

Kentucky, 309 U.S. 83 (1940).

2102 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).

Gambling: slot machines on excursion riverboats are taxed at a maximum rate

of 20 percent, while slot machines at a racetrack are taxed at a maximum rate of

36 percent. Fitzgerald v. Racing Ass’n of Central Iowa, 539 U.S. 103 (2003).

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).

AMENDMENT 14—RIGHTS GUARANTEED 2103
to favor certain industries or forms of industry 1520 and may tax different types of taxpayers differently, despite the fact that they compete.1521 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.” 1522 Classification may not be arbitrary. It must be based on a real and substantial difference 1523 and

the difference need not be great or conspicuous,1524 but there must

be no discrimination in favor of one as against another of the same

class.1525 Also, discriminations of an unusual character are scrutinized with special care.1526 A gross sales tax graduated at increasing rates with the volume of sales,1527 a heavier license tax on each

unit in a chain of stores where the owner has stores located in more

than one country,1528 and a gross receipts tax levied on corporations operating taxicabs, but not on individuals,1529 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.1530 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.1531

One not within the class claimed to be discriminated against

cannot challenge the constitutionality of a statute on the ground

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).

1520 Quong Wing v. Kirkendall, 223 U.S. 59, 62 (1912). See also Hammond Packing Co. v. Montana, 233 U.S. 331 (1914); Allied Stores of Ohio v. Bowers, 358 U.S.

522 (1959); Fitzgerald v. Racing Ass’n of Central Iowa, 539 U.S. 103 (2003).

1521 Puget Sound Co. v. Seattle, 291 U.S. 619, 625 (1934). See City of Pittsburgh

v. Alco Parking Corp., 417 U.S. 369 (1974).

1522 Colgate v. Harvey, 296 U.S. 404, 422 (1935).

1523 Southern Ry. v. Greene, 216 U.S. 400, 417 (1910); Quaker City Cab Co. v.

Pennsylvania, 277 U.S. 389, 400 (1928).

1524 Keeney v. New York, 222 U.S. 525, 536 (1912); Tax Comm’rs v. Jackson, 283

U.S. 527, 538 (1931).

1525 Giozza v. Tiernan, 148 U.S. 657, 662 (1893).

1526 Louisville Gas Co. v. Coleman, 227 U.S. 32, 37 (1928). See also Bell’s Gap

R.R. v. Pennsylvania, 134 U.S. 232, 237 (1890).

1527 Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935). See also Valentine v.

Great Atlantic & Pacific Tea Co., 299 U.S. 32 (1936).

1528 Louis K. Liggett Co. v. Lee, 288 U.S. 517 (1933).

1529 Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389 (1928). This case was

formally overruled in Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973).

1530 Tax Comm’rs v. Jackson, 283 U.S. 527, 537 (1931).

1531 Colgate v. Harvey, 296 U.S. 404, 422 (1935).

2104 AMENDMENT 14—RIGHTS GUARANTEED
that it denies equal protection of the law.1532 If a tax applies to a

class that may be separately taxed, those within the class may not

complain because the class might have been more aptly defined or

because others, not of the class, are taxed improperly.1533

Foreign Corporations and Nonresidents.—The Equal Protection Clause does not require identical taxes upon all foreign and

domestic corporations in every case.1534 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.1535 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,” 1536 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.1537 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.1538 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.1539 Even though the right of a foreign corporation to do business in a state rests on a license, the

Equal Protection Clause is held to insure it equality of treatment,

at least so far as ad valorem taxation is concerned.1540 The Court,

1532 Darnell v. Indiana, 226 U.S. 390, 398 (1912); Farmers Bank v. Minnesota,

232 U.S. 516, 531 (1914).

1533 Morf v. Bingaman, 298 U.S. 407, 413 (1936).

1534 Baltic Mining Co. v. Massachusetts, 231 U.S. 68, 88 (1913). See also Cheney

Brothers Co. v. Massachusetts, 246 U.S. 147, 157 (1918).

1535 Philadelphia Fire Ass’n v. New York, 119 U.S. 110, 119 (1886).

1536 Hanover Fire Ins. Co. v. Harding, 272 U.S. 494, 511 (1926).

1537 Southern Ry. v. Green, 216 U.S. 400, 418 (1910).

1538 Concordia Ins. Co. v. Illinois, 292 U.S. 535 (1934).

1539 Lincoln Nat’l Life Ins. Co. v. Read, 325 U.S. 673 (1945). This decision was

described as “an anachronism” in Western & Southern Life Ins. Co. v. State Bd. Of

Equalization, 451 U.S. 648, 667 (1981), the Court reaffirming the rule that taxes

discriminating against foreign corporations must bear a rational relation to a legitimate state purpose.

1540 Wheeling Steel Corp. v. Glander, 337 U.S. 562, 571, 572 (1949).

AMENDMENT 14—RIGHTS GUARANTEED 2105
in WHYY Inc. v. Glassboro,

1541 held that a foreign nonprofit corporation licensed to do business in the taxing state is denied equal

protection of the law where an exemption from state property taxes

granted to domestic corporations is denied to a foreign corporation

solely because it was organized under the laws of a sister state and

where there is no greater administrative burden in evaluating a foreign corporation than a domestic corporation in the taxing state.

State taxation of insurance companies, insulated from Commerce Clause attack by the McCarran-Ferguson Act, must pass similar hurdles under the Equal Protection Clause. In Metropolitan Life

Ins. Co. v. Ward,

1542 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.1543 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.1544

Income Taxes.—A state law that taxes the entire income of domestic corporations that do business in the state, including that derived within the state, while exempting entirely the income received outside the state by domestic corporations that do no local

business, is arbitrary and invalid.1545 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 resi1541 393 U.S. 117 (1968).

1542 470 U.S. 869, 878 (1985). The vote was 5–4, with Justice Powell’s opinion

for the Court 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.

1543 470 U.S. at 880.

1544 The first level of the Court’s “two-tiered” analysis of state statutes affecting

commerce tests for virtual per se invalidity. “When a state statute directly regulates

or discriminates against interstate commerce, or when its effect is to favor in-state

economic interests over out-of-state interests, we have generally struck down the

statute without further inquiry.” Brown-Forman Distillers Corp. v. New York State

Liquor Auth., 476 U.S. 573, 579 (1986).

1545 F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920). See also Walters v.

City of St. Louis, 347 U.S. 231 (1954), sustaining a municipal income tax imposed

on gross wages of employed persons but only on net profits of the self-employed, of

corporations, and of business enterprises.

2106 AMENDMENT 14—RIGHTS GUARANTEED
dents are permitted to deduct all losses, wherever incurred.1546 A

retroactive statute imposing a graduated tax at rates different from

those in the general income tax law, on dividends received in a prior

year that were deductible from gross income under the law in effect when they were received, does not violate the Equal Protection

Clause.1547

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.1548 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.1549 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.1550 Vested

and contingent remainders may be treated differently.1551 The exemption of property bequeathed to charitable or educational institutions may be limited to those within the state.1552 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.1553

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.1554 A state maintenance tax act, which taxes vehicle property carriers for hire at greater rates than it taxes similar vehicles

carrying property not for hire, is reasonable, because 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 extensive than that of one engaged in business as a common carrier.1555 A property tax on motor vehicles used in operating

a stage line that makes constant and unusual use of the highways

1546 Shaffer v. Carter, 252 U.S. 37, 56, 57 (1920); Travis v. Yale & Towne Mfg.

Co., 252 U.S. 60, 75, 76 (1920).

1547 Welch v. Henry, 305 U.S. 134 (1938).

1548 Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 288, 300 (1898).

1549 Billings v. Illinois, 188 U.S. 97 (1903).

1550 Campbell v. California, 200 U.S. 87 (1906).

1551 Salomon v. State Tax Comm’n, 278 U.S. 484 (1929).

1552 Board of Educ. v. Illinois, 203 U.S. 553 (1906).

1553 Maxwell v. Bugbee, 250 U.S. 525 (1919).

1554 Continental Baking Co. v. Woodring, 286 U.S. 352 (1932).

1555 Dixie Ohio Express Co. v. State Revenue Comm’n, 306 U.S. 72, 78 (1939).

AMENDMENT 14—RIGHTS GUARANTEED 2107
may be measured by gross receipts and be assessed at a higher rate

than are taxes on property not so employed.1556 Common motor carriers of freight operating over regular routes between fixed termini

may be taxed at higher rates than other carriers, common and private.1557 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.1558 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 from the tax.1559

Also sustained as valid have been exemptions of vehicles weighing

less than 3,000 pounds from graduated registration fees imposed

on carriers for hire, notwithstanding that the exempt vehicles, when

loaded, may outweigh those taxed; 1560 and exemptions from vehicle registration and license fees levied on private carriers operating a motor vehicle in the business of transporting persons or property for hire, the exemptions including one for vehicles hauling people

and farm products exclusively between points not having railroad

facilities and not passing through or beyond municipalities having

railroad facilities.1561

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,1562

whether the exemption results from the terms of the statute itself

or the conduct of a state official implementing state policy.

1563 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.1564 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.1565

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

1556 Alward v. Johnson, 282 U.S. 509 (1931).

1557 Bekins Van Lines v. Riley, 280 U.S. 80 (1929).

1558 Morf v. Bingaman, 298 U.S. 407 (1936).

1559 Clark v. Paul Gray, Inc., 306 U.S. 583 (1939).

1560 Carley & Hamilton v. Snook, 281 U.S. 66 (1930).

1561 Aero Mayflower Transit Co. v. Georgia Pub. Serv. Comm’n, 295 U.S. 285 (1935).

1562 F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).

1563 Missouri v. Dockery, 191 U.S. 165 (1903).

1564 Kentucky Union Co. v. Kentucky, 219 U.S. 140, 161 (1911).

1565 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).

2108 AMENDMENT 14—RIGHTS GUARANTEED
class—an action that could be invalidated under the Equal Protection Clause—and mere errors in judgment resulting in unequal valuation or undervaluation—actions that did not support a claim of discrimination.1566 Subsequently, however, the Court in Allegheny

Pittsburgh Coal Co. v. Webster County Comm’n,

1567 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, whereas assessments on property that has stayed in the same hands since 1976 may rise no more

that 2% per year.1568 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.1569 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.1570

Allegheny Pittsburgh was similarly distinguished in Armour v.

City of Indianapolis,

1571 where the Court held that Indianapolis, which

had abandoned one method of assessing payments against affected

lots for sewer projects for another, could forgive outstanding assessments payments without refunding assessments already paid. In

Armour, owners of affected lots had been given the option of paying in one lump sum, or of paying in 10, 20 or 30-year installment

plan. Despite arguments that the forgiveness of the assessment resulted in a significant disparity in the assessment paid by similarlysituated homeowners, the Court found that avoiding the administrative burden of continuing to collect the outstanding fees was a

rational basis for the City’s decision.1572

1566 Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350 (1918); Raymond v. Chicago Traction Co., 207 U.S. 20, 35, 37 (1907); Coutler v. Louisville & Nashville R.R.,

196 U.S. 599 (1905). See also Chicago, B. & Q. Ry. v. Babcock, 204 U.S. 585 (1907).

1567 488 U.S. 336 (1989).

1568 Nordlinger v. Hahn, 505 U.S. 1 (1992).

1569 505 U.S. at 14–15.

1570 505 U.S. at 12–13.

1571 566 U.S. ___, No. 11–161, slip op. (2012).

1572 566 U.S. ___, No. 11–161, slip op. at 7–10.

AMENDMENT 14—RIGHTS GUARANTEED 2109
An owner aggrieved by discrimination is entitled to have his

assessment reduced to the common level.1573 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.1574 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.1575

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.1576 Railroad

property may not be burdened for local improvements upon a basis

so wholly different from that used for ascertaining the contribution

demanded of individual owners as necessarily to produce manifest

inequality.1577 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.1578 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.1579 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 fewer than 25 miles of main

line within the district than for those having more.1580

Police Power Regulation

Classification.—Justice Holmes’ characterization of the Equal

Protection Clause as the “usual last refuge of constitutional arguments” 1581 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.

1573 Sioux City Bridge v. Dakota County, 260 U.S. 441, 446 (1923).

1574 Hillsborough v. Cromwell, 326 U.S. 620, 623 (1946); Allegheny Pittsburgh

Coal Co. v. Webster County Comm’n, 488 U.S. 336 (1989).

1575 St. Louis-San Francisco Ry v. Middlekamp, 256 U.S. 226, 230 (1921).

1576 Memphis & Charleston Ry. v. Pace, 282 U.S. 241 (1931).

1577 Kansas City So. Ry. v. Road Improv. Dist. No. 6, 256 U.S. 658 (1921); Thomas

v. Kansas City So. Ry., 261 U.S. 481 (1923).

1578 Road Improv. Dist. v. Missouri Pacific R.R., 274 U.S. 188 (1927).

1579 Branson v. Bush, 251 U.S. 182 (1919).

1580 Columbus & Greenville Ry. v. Miller, 283 U.S. 96 (1931).

1581 Buck v. Bell, 274 U.S. 200, 208 (1927).

2110 AMENDMENT 14—RIGHTS GUARANTEED
“[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.” 1582 The Court has made it clear that only

the totally irrational classification in the economic field will be struck

down,1583 and it has held that legislative classifications that impact severely upon some businesses and quite favorably upon others may be saved through stringent deference to legislative judgment.1584 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.1585 The Court has con1582 McGowan v. Maryland, 366 U.S. 420, 425–26 (1961).

1583 City of New Orleans v. Dukes, 427 U.S. 297 (1976). Upholding an ordinance

that banned all pushcart vendors from the French Quarter, except those in continuous operation for more than eight years, the Court summarized its method of decision here. “When local economic regulation is challenged solely as violating the Equal

Protection Clause, this Court consistently defers to legislative determinations as to

the desirability of particular statutory discriminations. . . . Unless a classification

trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality

of the statutory discriminations and require only that the classification challenged

be rationally related to a legitimate state interest. States are accorded wide latitude

in the regulation of their local economies under their police powers, and rational

distinctions may be made with substantially less than mathematical exactitude. Legislatures may implement their program step-by-step . . . in such economic areas,

adopting regulations that only partially ameliorate a perceived evil and deferring

complete elimination of the evil to future regulations. . . . In short, the judiciary

may not sit as a superlegislature 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.

1584 The “grandfather” clause upheld in Dukes preserved the operations of two

concerns that had operated in the Quarter for 20 years. The classification was sustained on the basis of (1) the City Council proceeding step-by-step and eliminating

vendors of more recent vintage, (2) the Council deciding that newer businesses were

less likely to have built up substantial reliance interests in continued operation in

the Quarter, and (3) the Council believing that both “grandfathered” vending interests had themselves become part of the distinctive character and charm of the Quarter. 427 U.S. at 305–06. See also Friedman v. Rogers, 440 U.S. 1, 17–18 (1979); United

States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 6 (1970).

1585 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461–70 (1981). The

quoted phrase is at 466 (emphasis by Court). Purporting to promote the purposes of

AMENDMENT 14—RIGHTS GUARANTEED 2111
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 newspaper 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.

Cable Television: exemption from regulation under the Cable Communications

Policy Act of facilities that serve only dwelling units under common ownership. FCC

v. Beach Communications, 508 U.S. 307 (1993). Regulatory efficiency is served by

exempting those systems for which the costs of regulation exceed the benefits to consumers, and potential for monopoly power is lessened when a cable system operator

is negotiating with a single-owner.

Cattle: a classification of sheep, as distinguished from cattle, in a regulation

restricting the use of public lands for grazing. Bacon v. Walker, 204 U.S. 311 (1907).

See also Omaechevarria v. Idaho, 246 U.S. 343 (1918).

Cotton gins: in a State where cotton gins are held to be public utilities and their

rates regulated, the granting of a license to a cooperative association distributing

profits ratably to members and nonmembers does not deny other persons operating

gins equal protection when there is nothing in the laws to forbid them to distribute

their net earnings among their patrons. Corporation Comm’n v. Lowe, 281 U.S. 431

(1930).

Debt adjustment business: operation only as incident to legitimate practice of

law. Ferguson v. Skrupa, 372 U.S. 726 (1963).

Eye glasses: law exempting sellers of ready-to-wear glasses from regulations forbidding opticians to fit or replace lenses without prescriptions from ophthalmologist

or optometrist and from restrictions on solicitation of sale of eye glasses by use of

advertising matter. Williamson v. Lee Optical Co., 348 U.S. 483 (1955).

Fish processing: stricter regulation of reduction of fish to flour or meal than of

canning. Bayside Fish Co. v. Gentry, 297 U.S. 422 (1936).

Food: bread sold in loaves must be of prescribed standard sizes, Schmidinger v.

Chicago, 226 U.S. 578 (1913); food preservatives containing boric acid may not be

sold, Price v. Illinois, 238 U.S. 446 (1915); lard not sold in bulk must be put up in

containers holding one, three or five pounds or some whole multiple thereof, Armour

& Co. v. North Dakota, 240 U.S. 510 (1916); milk industry may be placed in a special class for regulation, Lieberman v. Van De Carr, 199 U.S. 552 (1906); vendors

producing milk outside city may be classified separately, Adams v. Milwaukee, 228

2112 AMENDMENT 14—RIGHTS GUARANTEED
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 Ref. 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). See also North v. Russell, 427 U.S. 328, 338 (1976).Geographic distinctions in regulatory laws

Hotels: requirement that keepers of hotels having over fifty guests employ night

watchmen. Miller v. Strahl, 239 U.S. 426 (1915).

Insurance companies: regulation of fire insurance rates with exemption for farmers mutuals, German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914); different requirements imposed upon reciprocal insurance associations than upon mutual companies, Hoopeston Canning Co. v. Cullen, 318 U.S. 313 (1943); prohibition against

life insurance companies or agents engaging in undertaking business, Daniel v. Family Ins. Co., 336 U.S. 220 (1949).

Intoxicating liquors: exception of druggist or manufacturers from regulation. Lloyd

v. Dollison, 194 U.S. 445 (1904); Eberle v. Michigan, 232 U.S. 700 (1914).

Landlord-tenant: requiring trial no later than six days after service of complaint and limiting triable issues to the tenant’s default, provisions applicable in no

other legal action, under procedure allowing landlord to sue to evict tenants for nonpayment of rent, inasmuch as prompt and peaceful resolution of the dispute is proper

objective and tenants have other means to pursue other relief. Lindsey v. Normet,

405 U.S. 56 (1972).

Lodging houses: requirement that sprinkler systems be installed in buildings of

nonfireproof construction is valid as applied to such a building which is safeguarded

by a fire alarm system, constant watchman service and other safety arrangements.

Queenside Hills Co. v. Saxl, 328 U.S. 80 (1946).

Markets: prohibition against operation of private market within six squares of

public market. Natal v. Louisiana, 139 U.S. 621 (1891).

Medicine: a uniform standard of professional attainment and conduct for all physicians, Hurwitz v. North, 271 U.S. 40 (1926); reasonable exemptions from medical

registration law. Watson v. Maryland, 218 U.S. 173 (1910); exemption of persons who

heal by prayer from regulations applicable to drugless physicians, Crane v. Johnson, 242 U.S. 339 (1917); exclusion of osteopathic physicians from public hospitals,

Hayman v. Galveston, 273 U.S. 414 (1927); requirement that persons who treat eyes

without use of drugs be licensed as optometrists with exception for persons treating

eyes by use of drugs, who are regulated under a different statute, McNaughton v.

Johnson, 242 U.S. 344 (1917); a prohibition against advertising by dentists, not applicable to other professions, Semler v. Dental Examiners, 294 U.S. 608 (1935).

Motor vehicles: guest passenger regulation applicable to automobiles but not to

other classes of vehicles, Silver v. Silver, 280 U.S. 117 (1929); exemption of vehicles

from other states from registration requirement, Storaasli v. Minnesota, 283 U.S.

57 (1931); classification of driverless automobiles for hire as public vehicles, which

are required to procure a license and to carry liability insurance, Hodge Co. v. Cincinnati, 284 U.S. 335 (1932); exemption from limitations on hours of labor for drivAMENDMENT 14—RIGHTS GUARANTEED 2113
demned a variety of statutory classifications as failing the rational

ers 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 & St. L. Ry. v. Beckwith, 129 U.S. 26 (1889); Minneapolis & St. L. Ry. v. Emmons, 149 U.S. 364 (1893); assessing railroads with entire expense of altering a grade crossing, New York & N.E. R.R. v. Bristol, 151 U.S. 556

(1894); liability for fire communicated by locomotive engines, St. Louis & S.F. Ry. v.

Mathews, 165 U.S. 1 (1897); required weed cutting; Missouri, Kan., & Tex. Ry. v.

May, 194 U.S. 267 (1904); presumption against a railroad failing to give prescribed

warning signals, Atlantic Coast Line R.R. v. Ford, 287 U.S. 502 (1933); required use

of locomotive headlights of a specified form and power, Atlantic Coast Line Ry. v.

Georgia, 234 U.S. 280 (1914); presumption that railroads are liable for damage caused

by operation of their locomotives, Seaboard Air Line Ry. v. Watson, 287 U.S. 86 (1932);

required sprinkling of streets between tracks to lay the dust, Pacific Gas Co. v. Police Court, 251 U.S. 22 (1919). State “full-crew” laws do not violate the Equal Protection Clause by singling out the railroads for regulation and by making no provision

for minimum crews on any other segment of the transportation industry, Firemen v.

Chicago, R.I. & P. Ry. 393 U.S. 129 (1968).

Sales in bulk: requirement of notice of bulk sales applicable only to retail dealers. Lemieux v. Young, 211 U.S. 489 (1909).

Secret societies: regulations applied only to one class of oath-bound associations, having a membership of 20 or more persons, where the class regulated has a

tendency to make the secrecy of its purpose and membership a cloak for conduct

inimical to the personal rights of others and to the public welfare. New York ex rel.

Bryant v. Zimmerman, 278 U.S. 63 (1928).

Securities: a prohibition on the sale of capital stock on margin or for future delivery which is not applicable to other objects of speculation, e.g., cotton, grain. Otis

v. Parker, 187 U.S. 606 (1903).

Sunday closing law: notwithstanding that they prohibit the sale of certain commodities and services while permitting the vending of others not markedly different, and, even as to the latter, frequently restrict their distribution to small retailers as distinguished from large establishments handling salable as well as nonsalable

items, such laws have been upheld. Despite the desirability of having a required

day of rest, a certain measure of mercantile activity must necessarily continue on

2114 AMENDMENT 14—RIGHTS GUARANTEED
basis test, although some of the cases are of doubtful vitality today

and some have been questioned. Thus, the Court invalidated a statute that forbade stock insurance companies to act through agents

who were their salaried employees but permitted mutual companies to operate in this manner.1586 A law that 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.1587 The same result befell a statute that permitted mill

dealers without well-advertised trade names the benefit of a price

differential but that restricted this benefit to such dealers entering

the business before a certain date.1588 In a decision since overruled, the Court struck down a law that 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.1589

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.1590 Statutes limiting hours of labor for employees

in mines, smelters,1591 mills, factories,1592 or on public works 1593 have

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 Super 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).

1586 Hartford Ins. Co. v. Harrison, 301 U.S. 459 (1937).

1587 Smith v. Cahoon, 283 U.S. 553 (1931).

1588 Mayflower Farms v. Ten Eyck, 297 U.S. 266 (1936). See United States v.

Maryland Savings-Share Ins. Corp., 400 U.S. 4, 7 n.2 (1970) (reserving question of

case’s validity, but interpreting it as standing for the proposition that no showing of

a valid legislative purpose had been made).

1589 Morey v. Doud, 354 U.S. 457 (1957), overruled by City of New Orleans v.

Dukes, 427 U.S. 297 (1976), where the exemption of one concern had been by precise description rather than by name.

1590 Central State Univ. v. American Ass’n of Univ. Professors, 526 U.S. 124 (1999)

(upholding limitation on the authority of public university professors to bargain over

instructional workloads).

1591 Holden v. Hardy, 169 U.S. 366 (1988).

1592 Bunting v. Oregon, 243 U.S. 426 (1917).

1593 Atkin v. Kansas, 191 U.S. 207 (1903).

AMENDMENT 14—RIGHTS GUARANTEED 2115
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.1594 The exemption of mines employing fewer than ten persons

from a law pertaining to measurement of coal to determine a miner’s wages is not unreasonable.1595 All corporations 1596 or public service corporations 1597 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 workers’ compensation act according to the respective hazards of each,1598 and the exemption of

farm laborers and domestic servants does not render such an act

invalid.1599 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.1600 At a time

when protective labor legislation generally was falling under “liberty of contract” applications of the Due Process Clause, the Court

generally approved protective legislation directed solely to women

workers,1601 and this solicitude continued into present times in the

approval of laws that were more questionable,1602 but passage of

the sex discrimination provision of the Civil Rights Act of 1964 has

generally called into question all such protective legislation addressed solely to women.1603

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,1604 or to ven1594 Keokee Coke Co. v. Taylor, 234 U.S. 224 (1914). See also Knoxville Iron Co.

v. Harbison, 183 U.S. 13 (1901).

1595 McLean v. Arkansas, 211 U.S. 539 (1909).

1596 Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922).

1597 Chicago, R.I. & P. Ry. v. Perry, 259 U.S. 548 (1922).

1598 Mountain Timber Co. v. Washington, 243 U.S. 219 (1917).

1599 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).

1600 Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525

(1949). Nor 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, retirementinsurance 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).

1601 E.g., Muller v. Oregon, 208 U.S. 412 (1908).

1602 Goesaert v. Cleary, 335 U.S. 464 (1948).

1603 Title VII, 78 Stat. 253, 42 U.S.C. § 2000e. On sex discrimination generally,

see “Classifications Meriting Close Scrutiny—Sex,” supra.

1604 Mallinckrodt Works v. St. Louis, 238 U.S. 41 (1915).

2116 AMENDMENT 14—RIGHTS GUARANTEED
dors of commodities but not to vendors of labor,1605 have been upheld. Contrary to its earlier view, the Court now holds that an antitrust act that exempts agricultural products in the hands of the

producer is valid.1606 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.1607

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.1608

A grant of monopoly privileges, if otherwise an appropriate exercise of the police power, is immune to attack under that clause.1609

Likewise, enforcement of an unfair sales act, under which merchants are privileged to give trading stamps, worth two and onehalf 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.1610

Administrative Discretion.—A municipal ordinance that vests

in supervisory authorities a naked and arbitrary power to grant or

withhold consent to the operation of laundries in wooden buildings,

without consideration of the circumstances of individual cases, constitutes a denial of equal protection of the law when consent is withheld from certain persons solely on the basis of nationality.1611 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,1612 or from

building line restrictions.1613 Written permission of the mayor or president of the city council may be required before any person shall

move a building on a street.1614 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 ciga1605 International Harvester Co. v. Missouri, 234 U.S. 199 (1914).

1606 Tigner v. Texas, 310 U.S. 141 (1940) (overruling Connolly v. Union Sewer

Pipe Co., 184 U.S. 540 (1902)).

1607 Standard Oil Co. v. Tennessee, 217 U.S. 413 (1910).

1608 Carroll v. Greenwich Ins. Co., 199 U.S. 401 (1905).

1609 Pacific States Co. v. White, 296 U.S. 176 (1935); see also Slaughter-House

Cases, 83 U.S. (16 Wall.) 36 (1873): Nebbia v. New York, 291 U.S. 502, 529 (1934).

1610 Safeway Stores v. Oklahoma Grocers, 360 U.S. 334, 339–41 (1959).

1611 Yick Wo v. Hopkins, 118 U.S. 356 (1886).

1612 Fischer v. St. Louis, 194 U.S. 361 (1904).

1613 Gorieb v. Fox, 274 U.S. 603 (1927).

1614 Wilson v. Eureka City, 173 U.S. 32 (1899).

AMENDMENT 14—RIGHTS GUARANTEED 2117
rettes.1615 In a later case,1616 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.” 1617 Thus, a formula for dispensing aid to dependent children that 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.1618 Similarly, a state welfare assistance formula that, after calculation of individual need, provided less of the determined

amount to families with dependent children than to those persons

in the aged and infirm categories did not violate equal protection

because a state could reasonably believe that the aged and infirm

are the least able to bear the hardships of an inadequate standard

of living, and that the apportionment of limited funds was therefore rational.1619 Although 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,1620 acting to invalidate a provision only once,

1615 Gundling v. Chicago, 177 U.S. 183 (1900).

1616 Kotch v. Board of River Port Pilot Comm’rs, 330 U.S. 552 (1947).

1617 Dandridge v. Williams, 397 U.S. 471, 485 (1970). Decisions respecting the

rights of the indigent in the criminal process and dicta in Shapiro v. Thompson, 394

U.S. 618, 627 (1969), had raised the prospect that because of the importance of “food,

shelter, and other necessities of life,” classifications with an adverse or perhaps severe impact on the poor and needy would be subjected to a higher scrutiny. Dandridge

was a rejection of this approach, which was more fully elaborated in another context in San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 18–29 (1973).

1618 Dandridge v. Williams, 397 U.S. 471, 483–87 (1970).

1619 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).

1620 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

2118 AMENDMENT 14—RIGHTS GUARANTEED
and then on the premise that Congress was actuated by an improper purpose.1621

Similarly, the Court has rejected the contention that access to

housing, despite its great importance, is of any fundamental interest that 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.1622

However, a statute that prohibited the dispensing of contraceptive devices to single persons for birth control but not for disease

prevention purposes and that 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.1623 Also denying equal protection was a law affording

married parents, divorced parents, and unmarried mothers an opportunity to be heard with regard to the issue of their fitness to

continue or to take custody of their children, an opportunity the

Court decided was mandated by due process, but presuming the unfitness of the unmarried father and giving him no hearing.1624

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.1625 Comparative gravity of criminal offenses

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).

1621 Department of Agriculture v. Moreno, 413 U.S. 528 (1973) (also questioning

rationality).

1622 Lindsey v. Normet, 405 U.S. 56 (1972). The Court did invalidate one provision of the law requiring tenants against whom an eviction judgment had been entered after a trial to post a bond in double the amount 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.

1623 Eisenstadt v. Baird, 405 U.S. 438 (1972).

1624 Stanley v. Illinois, 405 U.S. 645, 658 (1972).

1625 Pace v. Alabama, 106 U.S. 583 (1883). See Salzburg v. Maryland, 346 U.S.

545 (1954), sustaining law rendering illegally seized evidence inadmissible in prosecutions in state courts for misdemeanors but permitting use of such evidence in

one county in prosecutions for certain gambling misdemeanors. Distinctions based

on county areas were deemed reasonable. In North v. Russell, 427 U.S. 328 (1976),

the Court sustained the provision of law-trained judges for some police courts and

AMENDMENT 14—RIGHTS GUARANTEED 2119
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.1626 Heavier penalties may be imposed upon

habitual criminals for like offenses,1627 even after a pardon for an

earlier offense,1628 and such persons may be made ineligible for parole.1629 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.1630

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 that they ultimately spend in custody, good time counting toward the date of eligibility for parole, does not deny the prisoners incarcerated in local jails equal protection. The distinction is

rationally justified by the fact that good-time credit is designed to

encourage prisoners to engage in rehabilitation courses and activities that exist only in state prisons and not in local jails.1631

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.1632 A statute that 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.1633 Similarly, a statute enabling the state to recover the costs of such transcripts and other legal defense fees by a civil action violated equal

protection because indigent defendants against whom judgment was

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.

1626 Collins v. Johnston, 237 U.S. 502, 510 (1915); Pennsylvania v. Ashe, 302

U.S. 51 (1937).

1627 McDonald v. Massachusetts, 180 U.S. 311 (1901); Moore v. Missouri, 159

U.S. 673 (1895); Graham v. West Virginia, 224 U.S. 616 (1912).

1628 Carlesi v. New York, 233 U.S. 51 (1914).

1629 Ughbanks v. Armstrong, 208 U.S. 481 (1908).

1630 Pennsylvania v. Ashe, 302 U.S. 51 (1937).

1631 McGinnis v. Royster, 410 U.S. 263 (1973). Cf. Hurtado v. United States, 410

U.S. 578 (1973).

1632 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).

1633 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).

2120 AMENDMENT 14—RIGHTS GUARANTEED
entered under the statute did not have the benefit of exemptions

and benefits afforded other civil judgment debtors.1634 But a bail

reform statute that provided for liberalized forms of release and that

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.1635 The Court has applied the clause strictly to prohibit numerous de jure and de facto distinctions based on wealth or indigency.1636

EQUAL PROTECTION AND RACE

Overview

The Fourteenth Amendment “is one of a series of constitutional

provisions having a common purpose; namely, securing to a race recently emancipated, a race that through many generations had been

held in slavery, all the civil rights that the superior race enjoy. The

true spirit and meaning of the amendments . . . cannot be understood without keeping in view the history of the times when they

were adopted, and the general objects they plainly sought to accomplish. At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that

those who had long been regarded as an inferior and subject race

would, when suddenly raised to the rank of citizenship, be looked

upon with jealousy and positive dislike, and that State laws might

be enacted or enforced to perpetuate the distinctions that had before existed. . . . [The Fourteenth Amendment] was designed to assure to the colored race the enjoyment of all the civil rights that

under the law are enjoyed by white persons, and to give to that

race the protection of the general government in that enjoyment,

whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions

by appropriate legislation.” 1637 Thus, a state law that on its face

discriminated against African-Americans was void.1638 In addition,

1634 James v. Strange, 407 U.S. 128 (1972).

1635 Schilb v. Kuebel, 404 U.S. 357 (1971).

1636 See “Poverty and Fundamental Interests: The Intersection of Due Process

and Equal Protection—Generally,” supra.

1637 Strauder v. West Virginia, 100 U.S. 303, 306–07 (1880).

1638 Strauder v. West Virginia, 100 U.S. 303 (1880) (law limiting jury service to

white males). Moreover it will not do to argue that a law that segregates the races

or prohibits contacts between them discriminates equally against both races. Buchanan

v. Warley, 245 U.S. 60 (1917) (ordinance prohibiting blacks from occupying houses

in blocks where whites were predominant and whites from occupying houses in blocks

AMENDMENT 14—RIGHTS GUARANTEED 2121
“[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.” 1639

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,1640 but the Court in Plessy v. Ferguson 1641 adopted a principle first propounded in litigation attacking racial segregation in

the schools of Boston, Massachusetts.1642 Plessy concerned not schools

but a state law requiring “equal but separate” facilities for rail transportation and requiring the separation of “white and colored” passengers. “The object of the [Fourteenth] [A]mendment was undoubtedly to enforce the absolute equality of the two races before the law,

but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races

upon terms unsatisfactory to either. Laws permitting, and even requiring their separation in places where they are liable to be brought

into contact do not necessarily imply the inferiority of either race

to the other, and have been generally, if not universally, recognized

as within the competency of the state legislatures in exercise of their

police power.” 1643 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

where blacks were predominant). Compare Pace v. Alabama, 106 U.S. 583 (1883)

(sustaining conviction under statute that imposed a greater penalty for adultery or

fornication between a white person and a Negro than was imposed for similar conduct by members of the same race, using “equal application” theory), with McLaughlin

v. Florida, 379 U.S. 184, 188 (1964), and Loving v. Virginia, 388 U.S. 1, 10 (1967)

(rejecting theory).

1639 Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (discrimination against

Chinese).

1640 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 67–72 (1873); Strauder v. West

Virginia, 100 U.S. 303, 307–08 (1880); Virginia v. Rives, 100 U.S. 313, 318 (1880);

Ex parte Virginia, 100 U.S. 339, 344–45 (1880).

1641 163 U.S. 537 (1896).

1642 Roberts v. City of Boston, 59 Mass. 198, 206 (1849).

1643 Plessy v. Ferguson, 163 U.S. 537, 543–44 (1896). “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced

separation of the two races stamps the colored race with a badge of inferiority. If

this be so, it is not by reason of anything found in the act, but solely because the

colored race chooses to put that construction upon it.” Id. at 552, 559.

2122 AMENDMENT 14—RIGHTS GUARANTEED
the political rights of the colored race have been longest and most

earnestly enforced.” 1644

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,1645 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.1646 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.1647

In 1938, the Court began to move away from “separate but equal.”

It held that a state that operated a law school open to whites only

and did not operate any law school open to African-Americans violated an applicant’s right to equal protection, even though the state

offered to pay his tuition at an out-of-state law school. The requirement of the clause was for equal facilities within the state.1648 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.1649 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.1650

Brown v. Board of Education.—“Separate but equal” was formally abandoned in Brown v. Board of Education,

1651 which involved challenges to segregation per se in the schools of four states

1644 163 U.S. at 544–45. The act of Congress in providing for separate schools

in the District of Columbia was specifically noted. Justice Harlan’s well-known dissent contended that the purpose and effect of the law in question was discriminatory and stamped African-Americans with a badge of inferiority. “[I]n view of the

Constitution, in the eye of the law, there is in this country no superior, dominant,

ruling class of citizens. There is no caste here. Our Constitution is color-blind, and

neither knows nor tolerates classes among citizens.” Id. at 552, 559.

1645 Gong Lum v. Rice, 275 U.S. 78 (1927).

1646 Cumming v. Richmond County Bd. of Educ., 175 U.S. 528 (1899).

1647 Berea College v. Kentucky, 211 U.S. 45 (1908).

1648 Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). See also Sipuel v.

Board of Regents, 332 U.S. 631 (1948).

1649 Sweatt v. Painter, 339 U.S. 629 (1950).

1650 McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).

1651 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).

AMENDMENT 14—RIGHTS GUARANTEED 2123
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.” 1652

After hearing argument on what remedial order should issue,

the Court remanded the cases to the lower courts to adjust the effectuation of its mandate to the particularities of each school district. “At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory

basis.” The lower courts were directed to “require that the defendants make a prompt and reasonable start toward full compliance,” although “[o]nce such a start has been made,” some additional time would be needed because of problems arising in the course

of compliance and the lower courts were to allow it if on inquiry

delay were found to be “in the public interest and [to be] consistent

with good faith compliance . . . to effectuate a transition to a racially nondiscriminatory school system.” In any event, however, the

lower courts were to require compliance “with all deliberate speed.” 1653

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.1654 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.1655 The

lower courts eventually began voiding these laws for discrimina1652 Brown v. Board of Education, 347 U.S. 483, 489–90, 492–95 (1954).

1653 Brown v. Board of Education, 349 U.S. 294, 300–01 (1955).

1654 Cooper v. Aaron, 358 U.S. 1 (1958).

1655 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).

2124 AMENDMENT 14—RIGHTS GUARANTEED
tory application, permitting class actions,1656 and the Supreme Court

voided the exhaustion of state remedies requirement.1657 In the early

1960s, various state practices—school closings,1658 minority transfer plans,1659 zoning,1660 and the like—were ruled impermissible, and

the Court indicated that the time was running out for full implementation of the Brown mandate.1661

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.1662 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 1663 led to a change of attitude in the lower courts

and the Supreme Court. In Green v. School Board of New Kent

1656 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).

1657 McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963).

1658 Griffin v. Prince Edward County School Bd., 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).

1659 Goss v. Knoxville Bd. of Educ., 373 U.S. 683 (1963). Such plans permitted

as of right a student assigned to a school in which students of his race were a minority to transfer to a school where the student majority was of his race.

1660 Northcross v. Board of Educ. of Memphis, 333 F.2d 661 (6th Cir. 1964).

1661 The first comment appeared in dictum in a nonschool case, Watson v. City

of Memphis, 373 U.S. 526, 530 (1963), and was implied in Goss v. Board of Educ. of

City of Knoxville, 373 U.S. 683, 689 (1963). In Bradley v. School Bd. of City of Richmond, 382 U.S. 103, 105 (1965), the Court announced that “[d]elays in desegregating school systems are no longer tolerable.” A grade-a-year plan was implicitly disapproved in Calhoun v. Latimer, 377 U.S. 263 (1964), vacating and remanding 321

F.2d 302 (5th Cir. 1963). See Singleton v. Jackson Municipal Separate School Dist.,

355 F.2d 865 (5th Cir. 1966).

1662 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).

1663 Pub. 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 and local officials in interpretations of the law and were accepted as

authoritative by the courts and used. 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).

AMENDMENT 14—RIGHTS GUARANTEED 2125
County,

1664 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.” 1665 Furthermore, as the Court and lower courts had by then

made clear, school desegregation encompassed not only the abolition of dual attendance systems for students, but also the merging

into one system of faculty,1666 staff, and services, so that no school

could be marked as either a “black” or a “white” school.1667

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.1668 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

1664 391 U.S. 430 (1968); Raney v. Gould Bd. of Educ., 391 U.S. 443 (1968). These

cases had been preceded by a circuit-wide promulgation of similar standards in United

States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966), modified and

aff’d, 380 F.2d 385 (5th Cir.) (en banc), cert. denied, 389 U.S. 840 (1967).

1665 Green, 391 U.S. at 439, 442 (1968). “Brown II was a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and

multifaceted problems would arise which would require time and flexibility for a

successful resolution. School boards such as the respondent then operating 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.

1666 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).

1667 United States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966),

mod. and aff’d, 380 F.2d 385 (5th Cir.) (en banc), cert. denied, 389 U.S. 840 (1967).

1668 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).

2126 AMENDMENT 14—RIGHTS GUARANTEED
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.” 1669

In the October 1970 Term the Court in Swann v. CharlotteMecklenburg Board of Education 1670 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.1671 The opinion in Swann emphasized that the goal since Brown was the dismantling of an officially imposed dual school system. “Independent

of student assignment, where it is possible to identify a ‘white school’

or a ‘Negro school’ simply by reference to the racial composition of

teachers and staff, the quality of school buildings and equipment,

or the organization of sports activities, a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown.” 1672 Although “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 that 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.1673 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.1674

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

1669 Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20 (1969). The Court

summarily reiterated its point several times in the Term. Carter v. West Feliciana

Parish School Board, 396 U.S. 290 (1970); Northcross v. Board of Educ. of Memphis,

397 U.S. 232 (1970); Dowell v. Board of Educ. of Oklahoma City, 396 U.S. 269 (1969).

1670 402 U.S. 1 (1971); see also Davis v. Board of School Comm’rs of Mobile County,

402 U.S. 33 (1971).

1671 McDaniel v. Barresi, 402 U.S. 39 (1971); North Carolina State Bd. of Educ.

v. Swann, 402 U.S. 43 (1971).

1672 402 U.S. at 18.

1673 402 U.S. at 25–27.

1674 402 U.S. at 22–25.

AMENDMENT 14—RIGHTS GUARANTEED 2127
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.1675 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.1676 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.1677

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.1678

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 1679 set aside a de1675 402 U.S. at 27–29.

1676 402 U.S. at 29–31.

1677 402 U.S. at 31–32. In Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424

(1976), the Court held that after a school board has complied with a judiciallyimposed desegregation plan in student assignments and thus undone the existing

segregation, it is beyond the district court’s power to order it subsequently to implement a new plan to undo the segregative effects of shifting residential patterns. The

Court agreed with the dissenters, Justices Marshall and Brennan, id. at 436, 441,

that the school board had not complied in other respects, such as in staff hiring and

promotion, but it thought that was irrelevant to the issue of neutral student assignments.

1678 The presence or absence of a statute mandating separation provides no talisman indicating the distinction between de jure and de facto segregation. Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 457 n.5 (1979). As early as Ex parte Virginia, 100 U.S. 339, 347 (1880), it was said that “no agency of the State, or of the

officers or agents by whom its powers are exerted, shall deny to any person within

its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, . . . denies or takes away the equal protection of

the laws . . . violates the constitutional inhibition: and as he acts in the name and

for the State, and is clothed with the State’s power, his act is that of the State.” The

significance of a statute is that it simplifies in the extreme a complainant’s proof.

1679 418 U.S. 717 (1974).

2128 AMENDMENT 14—RIGHTS GUARANTEED
segregation 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.1680

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.” 1681 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 that few, if any,

judges are qualified to perform and one that would deprive the people

of control of their schools through elected representatives.1682 “The

constitutional right of the Negro respondents residing in Detroit is

to attend a unitary school system in that district.” 1683

“The controlling principle consistently expounded in our holdings,” the Court wrote in the Detroit case, “is that the scope of the

remedy is determined by the nature and extent of the constitutional violation.” 1684 Although this axiom caused little problem when

1680 418 U.S. at 745.

1681 418 U.S. at 741–42.

1682 418 U.S. at 742–43. This theme has been sounded in a number of cases in

suits seeking remedial actions in particularly intractable areas. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 615 (1974); O’Shea v. Littleton,

414 U.S. 488, 500–02 (1974). In Hills v. Gautreaux, 425 U.S. 284, 293 (1976), the

Court wrote that it had rejected the metropolitan order because of “fundamental

limitations on the remedial powers of the federal courts to restructure the operation

of local and state governmental entities . . . .” In other places, the Court stressed

the absence of interdistrict violations, id. at 294, and in still others paired the two

reasons. Id. at 296.

1683 Milliken v. Bradley, 418 U.S. 717, 746 (1974). The four dissenters argued

both that state involvement was so pervasive that an inter-district order was permissible and that such an order was mandated because it was the State’s obligation to

establish a unitary system, an obligation which could not be met without an interdistrict order. Id . at 757, 762, 781.

1684 418 U.S. at 744. See Hills v. Gautreaux, 425 U.S. 284, 294 n.11 (1976) (“[T]he

Court’s decision in Milliken was premised on a controlling principle governing the

permissible scope of federal judicial power.”); Austin Indep. School Dist. v. United

States, 429 U.S. 990, 991 (1976) (Justice Powell concurring) (“a core principle of desegregation cases” is that set out in Milliken).

AMENDMENT 14—RIGHTS GUARANTEED 2129
the violation consisted of statutorily mandated separation,1685 it 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 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.

1686 The lower courts had found the school segregation existing within one part of the city to be attributable to official action, but as to the central city they found the separation not to be

the result of official action and refused to impose a remedy for those

schools. The Supreme Court found this latter holding to be error,

holding that, when it is proved that a significant portion of a system is officially segregated, the presumption arises that segregation in the remainder or other portions of the system is also similarly contrived. The burden then 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.1687

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 af1685 When an entire school system has been separated into white and black schools

by law, disestablishment of the system and integration of the entire system is required. “Having once found a violation, the district judge or school authorities should

make every effort to achieve the greatest possible degree of actual desegregation,

taking into account the practicalities of the situation. . . . The measure of any desegregation plan is its effectiveness.” Davis v. Board of School Comm’rs, 402 U.S.

33, 37 (1971). See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 25 (1971).

1686 413 U.S. 189 (1973).

1687 413 U.S. at 207–11. Justice Rehnquist argued that imposition of a districtwide segregation order should not proceed from a finding of segregative intent and

effect in only one portion, that in effect the Court was imposing an affirmative obligation to integrate without first finding a constitutional violation. Id. at 254 (dissenting). Justice Powell cautioned district courts against imposing disruptive desegregation plans, especially substantial busing in large metropolitan areas, and stressed

the responsibility to proceed with reason, flexibility, and balance. Id. at 217, 236

(concurring and dissenting). See his opinion in Austin Indep. School Dist. v. United

States, 429 U.S. 990, 991 (1976) (concurring).

2130 AMENDMENT 14—RIGHTS GUARANTEED
forded 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.1688 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.” 1689 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.1690

Second, in the first Dayton case the lower courts had found three

constitutional violations that had resulted in some pupil segregation, and, based on these three, viewed as “cumulative violations,”

a district-wide transportation plan had been imposed. Reversing, the

Supreme Court reiterated that the remedial powers of the federal

courts are called forth by violations and are limited by the scope of

those violations. “Once a constitutional violation is found, a federal

court is required to tailor ‘the scope of the remedy’ to fit ‘the nature and extent of the constitutional violation.’ ” 1691 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.” 1692 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.

1688 Of significance was the disallowance of the disproportionate impact analysis in constitutional interpretation and the adoption of an apparently strengthened

intent requirement. Washington v. Davis, 426 U.S. 229 (1976); Village of Arlington

Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977); Massachusetts Personnel Adm’r v. Feeney, 442 U.S. 256 (1979). This principle applies in the school

area. Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 419 (1977).

1689 Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976).

1690 427 U.S. at 436.

1691 Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977) (quoting Hills v.

Gautreaux, 425 U.S. 284, 294 (1976)).

1692 Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977). The Court did

not discuss the presumptions that had been permitted by Keyes. Justice Brennan,

the author of Keyes, concurred on the basis that the violations found did not justify

the remedy imposed, asserting that the methods of proof used in Keyes were still

valid. Id. at 421.

AMENDMENT 14—RIGHTS GUARANTEED 2131
Surprisingly, however, Keyes was reaffirmed and broadly applied in subsequent appeals of the Dayton case after remand and

in an appeal from Columbus, Ohio.1693 Following the Supreme Court

standards, the Dayton district court held that the plaintiffs had failed

to prove official segregative intent, but was reversed by the appeals court. The Columbus district court had found and had been

affirmed in finding racially discriminatory conduct and had ordered

extensive busing. The Supreme Court held that the evidence adduced in both district courts showed that the school boards had carried out segregating actions affecting a substantial portion of each

school system prior to and contemporaneously with the 1954 decision in Brown v. Board of Education. The Keyes presumption therefore required the school boards to show that systemwide discrimination had not existed, and they failed to do so. Because each system

was a dual one in 1954, it was subject to an “affirmative duty to

take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and

branch.” 1694 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 used to infer segregative intent, thus satisfying the Davis-Arlington Heights standards.1695 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.1696

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

1693 Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979); Dayton Bd. of Educ.

v. Brinkman, 443 U.S. 526 (1979).

1694 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).

1695 443 U.S. at 461–65.

1696 443 U.S. at 465–67.

2132 AMENDMENT 14—RIGHTS GUARANTEED
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.1697

The broad scope of federal courts’ remedial powers was more

recently reaffirmed in Missouri v. Jenkins.

1698 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.” 1699

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,1700 and subsequent cases declared the principle that the remedy must be no

more extensive than the violation found.1701 Congress 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.1702 Stron1697 Milliken v. Bradley, 433 U.S. 267 (1977). The Court also affirmed that part

of the order directing the State of Michigan to pay one-half the costs of the mandated programs. Id. at 288–91.

1698 495 U.S. 33 (1990).

1699 495 U.S. at 52. Similarly, the Court held in Spallone v. United States, 493

U.S. 265 (1990), that a district court had abused its discretion in imposing contempt sanctions directly on members of a city council for refusing to vote to implement a consent decree designed to remedy housing discrimination. Instead, the court

should have proceeded first against the city alone, and should have proceeded against

individual council members only if the sanctions against the city failed to produce

compliance.

1700 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 30–31 (1971).

1701 Milliken v. Bradley, 418 U.S. 717, 744 (1974).

1702 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.

AMENDMENT 14—RIGHTS GUARANTEED 2133
ger proposals, for statutes or for constitutional amendments, were

introduced in Congress, but none passed both Houses.1703

Of considerable importance to the possible validity of any substantial congressional restriction on judicial provision of remedies

for de jure segregation violations are two decisions contrastingly dealing with referenda-approved restrictions on busing and other remedies in Washington State and California.1704 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 im1228 (1972) (Justice Powell in Chambers), and the Equal Educational Opportunities

and Transportation of Students Act of 1974, 88 Stat. 514 (1974), 20 U.S.C. §§ 1701–

1757, see especially § 1714, interpreted in Morgan v. Kerrigan, 530 F.2d 401, 411–15

(1st Cir.), cert. denied, 426 U.S. 995 (1976), and United States v. Texas Education

Agency, 532 F.2d 380, 394 n.18 (5th Cir.), vacated on other grounds sub nom. Austin

Indep. School Dist. v. United States, 429 U.S. 990 (1976); and a series of annual

appropriations riders, first passed as riders to the 1976 and 1977 Labor-HEW bills,

§ 108, 90 Stat. 1434 (1976), and § 101, 91 Stat. 1460, 42 U.S.C. § 2000d, upheld against

facial attack in Brown v. Califano, 627 F.2d 1221 (D.C. Cir. 1980).

1703 See, e.g., The 14th Amendment and School Busing: Hearings Before the Senate Judiciary Subcommittee on the Constitution, 97th Congress, 1st Sess. (1981); and

School Desegregation: Hearings Before the House Judiciary Subcommittee on Civil

and Constitutional Rights, 97th Congress, 1st Sess. (1981).

1704 Washington v. Seattle School Dist., 458 U.S. 457 (1982); Crawford v. Los

Angeles Bd. of Educ., 458 U.S. 527 (1982). The decisions were in essence an application of Hunter v. Erickson, 393 U.S. 385 (1969).

2134 AMENDMENT 14—RIGHTS GUARANTEED
pact on a minority.1705 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.1706

The Court subsequently declined to extend the reasoning of these

cases to remedies for exclusively de facto racial segregation. In Schuette

v. Coalition to Defend Affirmative Action,

1707 the Court considered

the constitutionality of an amendment to the Michigan Constitution, approved by that state’s voters, to prohibit the use of racebased preferences as part of the admissions process for state universities. A plurality of the Schuette Court restricted its prior holdings

as applying only to those situations where state action had the serious risk, if not purpose, of causing specific injuries on account of

race.1708 Finding no similar risks of injury with regard to the Michigan Amendment and no similar allegations of past discrimination

in the Michigan university system, the Court declined to “restrict

the right of Michigan voters to determine that race-based preferences granted by state entities should be ended.” 1709 The plurality

opinion and a majority of the Court, however, explicitly rejected a

broader “political process theory” with respect to the constitutionality of race-based remedies. Specifically, the Court held that state

action that places effective decision making over a policy that “in1705 Washington v. Seattle School Dist., 458 U.S. 457, 470–82 (1982). Justice

Blackmun wrote the opinion of the Court and was joined by Justices Brennan, White,

Marshall, and Stevens. Dissenting were Justices Powell, Rehnquist, O’Connor, and

Chief Justice Burger. Id. at 488. The dissent essentially argued that because the

state was ultimately entirely responsible for all educational decisions, its choice to

take back part of the power it had delegated did not raise the issues the majority

thought it did.

1706 Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527, 535–40 (1982).

1707 572 U.S. ___, No. 12–682, slip op. (2014).

1708 The plurality opinion was written by Justice Kennedy, joined by Chief Justice Roberts and Justice Alito. Justice Scalia authored an opinion concurring in judgment, joined by Justice Thomas, arguing that Seattle School District and the case

on which it was based should be overturned in their entirety. Schuette, slip op. at

7–8 (Scalia, J., concurring in judgment). Justice Breyer also wrote an opinion concurring in judgment that the Michigan amendment did not violate the Equal Protection Clause. Specifically, Justice Breyer relied on the facts that (1) the amendment

forbid racial preferences aimed at achieving diversity in education (as opposed to

remedying past discrimination); (2) the amendment was aimed at ensuring that the

democratic process (as opposed to the university administration) controlled with respect to affirmative action policy; and (3) the underlying racial preference policy had

been adopted by individual school administrations, not by elected officials. Id. at 5

(Breyer, J., concurring in judgment). Justice Sotomayor, joined by Justice Ginsburg,

dissented. Id. at 5, 22 (Sotomayor, J., dissenting). Justice Kagan recused herself.

1709 Id. at 3–4 (plurality opinion).

AMENDMENT 14—RIGHTS GUARANTEED 2135
ures primarily to the benefit of the minority” at a different level of

government is not subject to heightened constitutional scrutiny.1710

Termination of Court Supervision.—With most school desegregation decrees having been entered decades ago, the issue arose

as to what showing of compliance is necessary for a school district

to free itself of continuing court supervision. The Court grappled

with the issue, first in a case involving Oklahoma City public schools,

then in a case involving the University of Mississippi college system. A desegregation decree may be lifted, the Court said in Oklahoma City Board of Education v. Dowell,

1711 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.” 1712 In United States

v. Fordice,

1713 the Court determined that 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 also, to the extent practicable and consistent

with sound educational practices, had to eradicate policies and practices that were traceable to the dual system and that continued to

have segregative effects. The Court identified several surviving aspects of Mississippi’s prior dual system that were constitutionally

suspect and that had to 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, was suspect because it originated as

a means of preserving segregation. Also suspect were the widespread duplication of programs, a possible remnant of the dual

“separate-but-equal” system; institutional mission classifications that

made three historically white schools the flagship “comprehensive”

universities; and the retention and operation of all eight schools rather

than the possible merger of some.

1710 Id. at 11 (plurality opinion).

1711 498 U.S. 237 (1991).

1712 498 U.S. at 249–50.

1713 505 U.S. 717.

2136 AMENDMENT 14—RIGHTS GUARANTEED
Juries

It has been established since Strauder v. West Virginia 1714 that

exclusion of an identifiable racial or ethnic group from a grand jury 1715

that indicts a defendant or a from petit jury 1716 that tries him, or

from both,1717 denies a defendant of the excluded race equal protection and necessitates reversal of his conviction or dismissal of his

indictment.1718 Even if the defendant’s race differs from that of the

excluded jurors, the Court held, the defendant has third-party standing to assert the rights of jurors excluded on the basis of race.1719

“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.” 1720 Thus, persons may bring actions seeking affirmative

1714 100 U.S. 303 (1880). Cf. Virginia v. Rives, 100 U.S. 313 (1880). Discrimination on the basis of race, color, or previous condition of servitude in jury selection

has also been statutorily illegal since enactment of § 4 of the Civil Rights Act of

1875, 18 Stat. 335, 18 U.S.C. § 243. See Ex parte Virginia, 100 U.S. 339 (1880). In

Hernandez v. Texas, 347 U.S. 475 (1954), the Court found jury discrimination against

Mexican-Americans to be a denial of equal protection, a ruling it reiterated in Castaneda

v. Partida, 430 U.S. 482 (1977), finding proof of discrimination by statistical disparities, even though Mexican-surnamed individuals constituted a governing majority of

the county and a majority of the selecting officials were Mexican-American.

1715 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).

1716 Hollins v. Oklahoma, 295 U.S. 394 (1935); Avery v. Georgia, 345 U.S. 559

(1953).

1717 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).

1718 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).

1719 Powers v. Ohio, 499 U.S. 400, 415 (1991). Campbell v. Louisiana, 523 U.S.

392 (1998) (grand jury). See also Peters v. Kiff, 407 U.S. 493 (1972) (defendant entitled to have his conviction or indictment set aside if he proves such exclusion).

The Court in 1972 was substantially divided with respect to the reason for rejecting

the “same class” rule—that the defendant be of the excluded class—but in Taylor v.

Louisiana, 419 U.S. 522 (1975), involving a male defendant and exclusion of women,

the Court ascribed the result to the fair-cross-section requirement of the Sixth Amendment, which would have application across-the-board.

1720 Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 329 (1970).

AMENDMENT 14—RIGHTS GUARANTEED 2137
relief to outlaw discrimination in jury selection, instead of depending on defendants to raise the issue.1721

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 1722 or when it is shown that the number of

African-Americans who served was grossly disproportionate to the

percentage of African-Americans in the population and eligible for

jury service.1723 Once this prima facie showing has been made, the

burden is upon the jurisdiction to prove that it had not practiced

discrimination; it is not adequate that jury selection officials testify

under oath that they did not discriminate.1724 Although the Court

in connection with a showing of great disparities in the racial makeup

of jurors called has voided certain practices that made discrimination easy to accomplish,1725 it has not outlawed discretionary selection pursuant to general standards of educational attainment and

character that can be administered fairly.1726 Similarly, it declined

to rule that African-Americans must be included on all-white jury

commissions that administer the jury selection laws in some states.1727

In Swain v. Alabama,

1728 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 AfricanAmerican 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 indicated that 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

1721 Carter v. Jury Comm’n of Greene County, 396 U.S. 320 (1970); Turner v.

Fouche, 396 U.S. 346 (1970).

1722 Norris v. Alabama, 294 U.S. 587 (1935); Patton v. Mississippi, 332 U.S. 463

(1947); Hill v. Texas, 316 U.S. 400 (1942).

1723 Pierre v. Louisiana, 306 U.S. 354 (1939); Cassell v. Texas, 339 U.S. 282 (1950);

Eubanks v. Louisiana, 356 U.S. 584 (1958); Whitus v. Georgia, 385 U.S. 545 (1967);

Alexander v. Louisiana, 405 U.S. 625 (1972). For an elaborate discussion of statistical proof, see Castaneda v. Partida, 430 U.S. 482 (1977).

1724 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).

1725 Avery v. Georgia, 345 U.S. 559 (1953) (names of whites and AfricanAmericans 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”).

1726 Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 331–37 (1970), and

cases cited.

1727 396 U.S. at 340–41.

1728 380 U.S. 202 (1965).

2138 AMENDMENT 14—RIGHTS GUARANTEED
had ever served on a jury and that some exclusions were not the

result of defense peremptory challenges, the 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.” 1729 To rebut this showing, the prosecutor “must articulate a

neutral explanation related to the particular case,” but the explanation “need not rise to the level justifying exercise of a challenge for

cause.” 1730 In fact, “[a]lthough the prosecutor must present a comprehensible reason, ‘[t]he [rebuttal] does not demand an explanation that is persuasive, or even plausible’; so long as the reason is

not inherently discriminatory, it suffices.” 1731 Such a rebuttal having been offered, “the court must then determine whether the defendant has carried his burden of proving purposeful discrimination.

This final step involves evaluating ‘the persuasiveness of the justification’ proffered by the prosecutor, but the ‘ultimate burden of persuasion regarding racial motivation rests with, and never shifts from,

the opponent of the strike.’ ” 1732 “On appeal, a trial court’s ruling

1729 476 U.S. 79, 96 (1986). Establishing a prima facie case can be done through

a “wide variety of evidence, so long as the sum of proffered facts gives rise to an

inference of discriminatory purpose.” Id. at 93–94. A state, however, cannot require

that a defendant prove a prima facie case under a “more likely than not” standard,

as the function of the Batson test is to create an inference and shift the burden to

the state to offer race-neutral reasons for the peremptory challenges. Only then does

a court weigh the likelihood that racial discrimination occurred. Johnson v. California, 543 U.S. 499 (2005).

1730 476 U.S. at 98 (1986). The principles were applied in Trevino v. Texas, 503

U.S. 562 (1991), holding that a criminal defendant’s allegation of a state’s pattern of

historical and habitual use of peremptory challenges to exclude members of racial

minorities was sufficient to raise an equal protection claim under Swain as well as

Batson. In Hernandez v. New York, 500 U.S. 352 (1991), a prosecutor was held to

have sustained his burden of providing a race-neutral explanation for using peremptory challenges to strike bilingual Latino jurors; the prosecutor had explained that,

based on the answers and demeanor of the prospective jurors, he had doubted whether

they would accept the interpreter’s official translation of trial testimony by Spanishspeaking 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).

1731 Rice v. Collins, 546 U.S. 333, 338 (2006) (citation omitted). The holding of

the case was that, in a habeas corpus action, the Ninth Circuit “panel majority improperly substituted its evaluation of the record for that of the state trial court.” Id.

at 337–38. Justice Breyer, joined by Justice Souter, concurred but suggested “that

legal life without peremptories is no longer unthinkable” and “that we should reconsider Batson’s test and the peremptory challenge system as a whole.” Id. at 344.

1732 Rice v. Collins, 546 U.S. at 338 (citations omitted). “[O]nce it is shown that

a discriminatory intent was a substantial or motivating factor in an action taken by

AMENDMENT 14—RIGHTS GUARANTEED 2139
on the issue of discriminatory intent must be sustained unless it is

clearly erroneous,” 1733 but, on more than one occasion, the Supreme Court has reversed trial courts’ findings of no discriminatory intent.1734 The Court has also extended Batson to apply to racially discriminatory use of peremptory challenges by private litigants

in civil litigation,1735 and by a defendant in a criminal case,1736 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, the answer to which depends in part on the responsibilities of a foreman in the particular system challenged. Thus,

the Court “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.1737 That situation was distinguished, however, in a due process

challenge to the federal system, where the foreman’s responsibilia state actor, the burden shifts to the party defending the action to show that this

factor was not determinative. We have not previously applied this rule in a Batson

case, and we need not decide here whether that standard governs in this context. . . . [Nevertheless,] a peremptory strike shown to have been motivated in substantial part by a discriminatory intent could not be sustained based on any lesser

showing by the prosecution.” Snyder v. Louisiana, 128 S. Ct. 1203, 1212 (2008) (citation omitted).

To rule on a Batson objection based on a prospective juror’s demeanor during

voir dire, it is not necessary that the ruling judge have observed the juror personally. That a judge who observed a prospective juror should take those observations

into account, among other things, does not mean that a demeanor-based explanation for a strike must be rejected if the judge did not observe or cannot recall the

juror’s demeanor. Thaler v. Haynes, 559 U.S. ___, No. 09–273, slip op. (2010).

1733 Federal courts are especially deferential to state court decisions on discriminatory intent when conducting federal habeas review. Felkner v. Jackson, 562 U.S.

___, No. 10–797, slip op. at 4 (2011) (per curiam) (citation omitted)..

1734 See, e.g., Foster v. Chatman, 578 U.S. ___, No. 14–8349, slip op. at 10–23

(2016) (applying the three-step process set forth in Batson to allow a death row inmate to pursue an appeal on the grounds that the state court’s conclusion that the

defendant had not shown purposeful discrimination during voir dire was clearly erroneous given that the prosecution’s justifications for striking African-American jurors, while seeming “reasonable enough,” had “no grounding in fact,” were contradicted by the record, and had shifted over time); Snyder v. Louisiana, 552 U.S. 472,

483 (2008) (finding the prosecution’s race-neutral explanation for its peremptory challenge of an African-American juror to be implausible, and that this “implausibility”

was “reinforced by the prosecutor’s acceptance of white jurors” whom the prosecution could have challenged for the same reasons that it claimed to have challenged

the African-American juror); Miller-El v. Dretke, 545 U.S. 231, 240–41 (2005) (finding discrimination in the use of peremptory strikes based on various factors, including the high ratio of African-Americans struck from the venire panel, some of whom

were struck on grounds that “appeared equally on point as to some white jurors

who served”).

1735 Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).

1736 Georgia v. McCollum, 505 U.S. 42 (1992).

1737 Rose v. Mitchell, 443 U.S. 545, 551 n.4 (1979).

2140 AMENDMENT 14—RIGHTS GUARANTEED
ties were “essentially clerical” and where the selection was from among

the members of an already chosen jury.1738

Capital Punishment

In McCleskey v. Kemp 1739 the Court rejected an equal protection claim of a black defendant who received a death sentence following conviction for murder of a white victim, even though a statistical study showed that blacks charged with murdering whites

were more than four times as likely to receive a death sentence in

the state than were defendants charged with killing blacks. The Court

distinguished Batson v. Kentucky by characterizing capital sentencing as “fundamentally different” from jury venire selection; consequently, reliance on statistical proof of discrimination is less rather

than more appropriate.1740 “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.” 1741 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.1742

Housing

Buchanan v. Warley 1743 invalidated an ordinance that prohibited blacks from occupying houses in blocks where the greater number of houses were occupied by whites and that prohibited whites

1738 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 black defendants from “the injuries of stigmatization

and prejudice” associated with discrimination. Id. at 347.

1739 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.

1740 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.

1741 481 U.S. at 297. Discretion is especially important to the role of a capital

sentencing jury, which must be allowed to consider any mitigating factor relating to

the defendant’s background or character, or to the nature of the offense; the Court

also cited the “traditionally ‘wide discretion’ ” accorded decisions of prosecutors. Id.

at 296.

1742 The Court distinguished Batson by suggesting that the death penalty challenge would require a prosecutor “to rebut a study that analyzes the past conduct of

scores of prosecutors” whereas the peremptory challenge inquiry would focus only

on the prosecutor’s own acts. 481 U.S. at 296 n.17.

1743 245 U.S. 60 (1917). See also Harmon v. Tyler, 273 U.S. 668 (1927); Richmond v. Deans, 281 U.S. 704 (1930).

AMENDMENT 14—RIGHTS GUARANTEED 2141
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.1744 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,

1745 though on somewhat ambiguous grounds,

whereas a state constitutional requirement that decisions of local

authorities to build low-rent housing projects in an area must first

be submitted to referendum, although other similar decisions were

not so limited, was found not to violate the Equal Protection Clause.1746

Private racial discrimination in the sale or rental of housing is subject to two federal laws prohibiting most such discrimination.1747

Provision of publicly assisted housing, of course, must be on a nondiscriminatory basis.1748

Other Areas of Discrimination

Transportation.—The “separate but equal” doctrine won Supreme Court endorsement in the transportation context,1749 and its

passing in the education field did not long predate its demise in

transportation as well.1750 During the interval, the Court held invalid a state statute that permitted carriers to provide sleeping and

dining cars for white persons only,1751 held that a carrier’s provision of unequal, or nonexistent, first class accommodations to AfricanAmericans violated the Interstate Commerce Act,1752 and voided both

state-required and privately imposed segregation of the races on interstate carriers as burdens on commerce.1753 Boynton v. Vir1744 Shelley v. Kraemer, 334 U.S. 1 (1948); Hurd v. Hodge, 334 U.S. 24 (1948);

Barrows v. Jackson, 346 U.S. 249 (1953). Cf. Corrigan v. Buckley, 271 U.S. 323 (1926).

1745 387 U.S. 369 (1967).

1746 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.

1747 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

(the Fair Housing Act), 82 Stat. 73, 42 U.S.C. §§ 3601 et seq.

1748 See Hills v. Gautreaux, 425 U.S. 284 (1976).

1749 Plessy v. Ferguson, 163 U.S. 537 (1896).

1750 Gayle v. Browder, 352 U.S. 903 (1956), aff’g 142 F. Supp. 707 (M.D. Ala.)

(statute requiring segregation on buses is unconstitutional). “We have settled beyond question that no State may require racial segregation of interstate transportation facilities. . . . This question is no longer open; it is foreclosed as a litigable issue.” Bailey v. Patterson, 369 U.S. 31, 33 (1962).

1751 McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 151 (1914).

1752 Mitchell v. United States, 313 U.S. 80 (1941).

1753 Morgan v. Virginia, 328 U.S. 373 (1946); Henderson v. United States, 339

U.S. 816 (1950).

2142 AMENDMENT 14—RIGHTS GUARANTEED
ginia 1754 voided a trespass conviction of an interstate AfricanAmerican bus passenger who had refused to leave a restaurant that

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.1755 A municipality could not operate a racially segregated

park pursuant to a will that left the property for that purpose and

that specified that only whites could use the park,1756 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.1757 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.1758

Marriage.—Statutes that forbid the contracting of marriage between persons of different races are unconstitutional,1759 as are statutes that penalize interracial cohabitation.1760 Nor may a court deny

custody of a child based on a parent’s remarriage to a person of

1754 364 U.S. 454 (1960).

1755 E.g., Mayor & City Council of Baltimore v. Dawson, 350 U.S. 877 (1955)

(public beaches and bathhouses); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (municipal golf courses); Muir v. Louisville Park Theatrical Ass’n, 347 U.S. 971 (1954)

(city lease of park facilities); New Orleans City Park Improvement Ass’n v. Detiege,

358 U.S. 54 (1958) (public parks and golf courses); State Athletic Comm’n v. Dorsey,

359 U.S. 533 (1959) (statute requiring segregated athletic contests); Turner v. City

of Memphis, 369 U.S. 350 (1962) (administrative regulation requiring segregation

in airport restaurant); Schiro v. Bynum, 375 U.S. 395 (1964) (ordinance requiring

segregation in municipal auditorium).

1756 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.

1757 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.

1758 Palmer v. Thompson, 403 U.S. 217 (1971). The Court found that there was

no official encouragement of discrimination through the act of closing the pools and

that inasmuch as both white and black citizens were deprived of the use of the pools

there was no unlawful discrimination. Justices White, Brennan, and Marshall dissented, arguing that state action taken solely in opposition to desegregation was

impermissible, both in defiance of the lower court order and because it penalized

African-Americans for asserting their rights. Id. at 240. Justice Douglas also dissented. Id. at 231.

1759 Loving v. Virginia, 388 U.S. 1 (1967).

1760 McLaughlin v. Florida, 379 U.S. 184 (1964).

AMENDMENT 14—RIGHTS GUARANTEED 2143
another race and the presumed “best interests of the child” to be

free from the prejudice and stigmatization that might result.1761

Judicial System.—Segregation in courtrooms is unlawful and

may not be enforced through contempt citations for disobedience 1762 or through other means. Treatment of parties to or witnesses in judicial actions based on their race is impermissible.1763

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.1764

Public Designation.—It is unconstitutional to designate candidates on the ballot by race 1765 and apparently any sort of designation by race on public records is suspect, although not necessarily unlawful.1766

Public Accommodations.—Whether 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 1960s, but it avoided finally deciding one

way or the other, generally finding forbidden state action in some

aspect of the situation.1767 Passage of the Civil Rights Act of 1964

obviated any necessity to resolve the issue.1768

Elections .—Although, 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,1769 the administration of election statutes so as to treat white and black voters

or candidates differently can constitute a denial of equal protection

1761 Palmore v. Sidoti, 466 U.S. 429 (1984).

1762 Johnson v. Virginia, 373 U.S. 61 (1963).

1763 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).

1764 Lee v. Washington, 390 U.S. 333 (1968); Wilson v. Kelley, 294 F. Supp. 1005

(N.D.Ga.), aff’d, 393 U.S. 266 (1968).

1765 Anderson v. Martin, 375 U.S. 399 (1964).

1766 Tancil v. Woolls, 379 U.S. 19 (1964) (summarily affirming lower court rulings sustaining law requiring that every divorce decree indicate race of husband and

wife, but voiding laws requiring separate lists of whites and African-Americans in

voting, tax and property records).

1767 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).

1768 Title 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).

1769 See “Federal Remedial Legislation,” infra.

2144 AMENDMENT 14—RIGHTS GUARANTEED
as well.1770 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.1771

“Affirmative Action”: Remedial Use 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 when formulating and implementing a remedy to overcome the effects of past discrimination. Often

the issue is framed in terms of “reverse discrimination,” in that the

governmental action deliberately favors members of one class and

consequently may adversely affect nonmembers of that class.

1772 Although the Court had previously accepted the use of suspect criteria such as race to formulate remedies for specific instances of past

discrimination 1773 and had allowed preferences for members of certain non-suspect classes that had been the object of societal discrimination,1774 it was not until the late 1970s that the Court gave plenary review to programs that expressly used race as the primary

consideration for awarding a public benefit.1775

1770 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).

1771 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).

1772 While the emphasis is upon governmental action, private affirmative actions may implicate statutory bars to uses of race. E.g., McDonald v. Santa Fe Trail

Transp. Co., 427 U.S. 273 (1976), held, not in the context of an affirmative action

program, that whites were as entitled as any group to protection of federal laws

banning racial discrimination in employment. The Court emphasized that it was not

passing at all on the permissibility of affirmative action programs. Id. at 280 n.8. In

United Steelworkers v. Weber, 443 U.S. 193 (1979), the Court held that title VII did

not prevent employers from instituting voluntary, race-conscious affirmative action

plans. Accord, Johnson v. Transportation Agency, 480 U.S. 616 (1987). Nor does title

VII prohibit a court from approving a consent decree providing broader relief than

the court would be permitted to award. Local 93, Int’l Ass’n of Firefighters v. City of

Cleveland, 478 U.S. 501 (1986). And, court-ordered relief pursuant to title VII may

benefit persons not themselves the victims of discrimination. Local 28 of the Sheet

Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421 (1986).

1773 E.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 22–25

(1971).

1774 Programs to overcome past societal discriminations against women have been

approved, Kahn v. Shevin, 416 U.S. 351 (1974); Schlesinger v. Ballard, 419 U.S. 498

(1975); Califano v. Webster, 430 U.S. 313 (1977), but gender classifications are not

as suspect as racial ones. Preferential treatment for American Indians was approved, Morton v. Mancari, 417 U.S. 535 (1974), but on the basis that the classification was political rather than racial.

1775 The constitutionality of a law school admissions program in which minority

applicants were preferred for a number of positions was before the Court in DeFunis

v. Odegaard, 416 U.S. 312 (1974), but the Court did not reach the merits.

AMENDMENT 14—RIGHTS GUARANTEED 2145
In United Jewish Organizations v. Carey,

1776 New York State

had drawn a plan that consciously used racial criteria to create districts with nonwhite populations in order to comply with the Voting Rights Act and to obtain the United States Attorney General’s

approval for a redistricting law. These districts were drawn large

enough to permit the election of nonwhite candidates in spite of the

lower voting turnout of nonwhites. In the process a Hasidic Jewish

community previously located entirely within one senate and one

assembly district was divided between two senate and two assembly districts, and members of that community sued, alleging that

the value of their votes had been diluted solely for the purpose of

achieving a racial quota. The Supreme Court approved the districting, although the fragmented majority of seven concurred in no majority opinion.

Justice White, delivering the judgment of the Court, based the

result on alternative grounds. First, because the redistricting took

place pursuant to the administration of the Voting Rights Act, Justice White 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. Justice White noted 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.1777

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.1778

1776 430 U.S. 144 (1977). Chief Justice Burger dissented, id. at 180, and Justice

Marshall did not participate.

1777 430 U.S. at 155–65. Joining this part of the opinion were Justices Brennan,

Blackmun, and Stevens.

1778 430 U.S. at 165–68. Joining this part of the opinion were Justices Stevens

and Rehnquist. In a separate opinion, Justice Brennan noted that preferential race

policies were subject to several substantial arguments: (1) they may disguise a policy

that perpetuates disadvantageous treatment; (2) they may serve to stimulate society’s latent race consciousness; (3) they may stigmatize recipient groups as much as

overtly discriminatory practices against them do; (4) they may be perceived by many

2146 AMENDMENT 14—RIGHTS GUARANTEED
It was anticipated that Regents of the University of California

v. Bakke 1779 would shed further light on the constitutionality of affirmative action. Instead, the Court again fragmented. In Bakke, the

Davis campus medical school admitted 100 students each year. Of

these slots, 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 the 16 positions not

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.1780

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, however, 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 a remedial racial classification that stigmatized a 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.1781

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.

1779 438 U.S. 265 (1978).

1780 Four Justices did not reach the constitutional question. In their view, Title

VI of the Civil Rights Act of 1964, which bars discrimination on the ground of race,

color, or national origin by any recipient of federal financial assistance, outlawed

the college’s program and made unnecessary any consideration of the Constitution.

See 78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d–7. These Justices would have admitted Bakke and barred the use of race in admissions. 438 U.S. at 408–21 (Justices

Stevens, Stewart, and Rehnquist and Chief Justice Burger). 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. 438 U.S.

at 284–87 (Justice Powell), 328–55 (Justices Brennan, White, Marshall, and Blackmun).

They thus reached the constitutional issue.

1781 438 U.S. at 355–79 (Justices Brennan, White, Marshall, and Blackmun). The

intermediate standard of review adopted by the four Justices is that formulated for

gender cases. “Racial classifications designed to further remedial purposes ‘must serve

important governmental objectives and must be substantially related to achievement of those objectives.’ ” Id. at 359.

AMENDMENT 14—RIGHTS GUARANTEED 2147
Justice Powell, however, argued that all racial classifications are

suspect and require strict scrutiny. Because 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.1782 Justice Powell thus agreed that Bakke

should be admitted, but he joined the four justices who sought to

allow the college to consider race to some degree in its admissions.1783

The Court then began a circuitous route toward disfavoring affirmative action, at least when it occurs outside the education context. At first, the Court seemed inclined to extend the result in Bakke.

In Fullilove v. Klutznick,

1784 the Court, still lacking a majority opinion, upheld a federal statute requiring that at least ten percent of

public works funds be set aside for minority business enterprises.

A series of opinions by six Justices 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. Chief Judge Burger issued the judgment, which emphasized Congress’s preeminent role

under the Commerce Clause and the Fourteenth Amendment to determine the existence of past discrimination and its continuing effects and to implement remedies that were race conscious in order

to cure those effects. The principal concurring opinion by Justice

Marshall applied the Brennan analysis in Bakke, using 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.” 1785

Taken together, the opinions established that, although Congress had the power to make the findings that will establish the

necessity to use racial classifications in an affirmative way, these

1782 438 U.S. at 287–320.

1783 See 438 U.S. at 319–20 (Justice Powell).

1784 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.

1785 448 U.S. at 517.

2148 AMENDMENT 14—RIGHTS GUARANTEED
findings need not be extensive nor express and may be collected in

many ways.1786 Moreover, although the opinions emphasized the limited duration and magnitude of the set-aside program, they appeared to attach no constitutional significance to these limitations,

thus leaving open the way for programs of a scope sufficient to remedy all the identified effects of past discrimination.1787 But the most

important part of these opinions rested in the clear sustaining of

race classifications as permissible in remedies and in the approving of some forms of racial quotas. The Court rejected arguments

that minority beneficiaries of such programs are stigmatized, that

burdens are placed on innocent third parties, and that the program is overinclusive, so as to benefit some minority members who

had suffered no discrimination.1788

Despite these developments, the Court remained divided in its

response to constitutional challenges to affirmative action plans.1789

As a general matter, authority to apply racial classifications was

found to be at its greatest when Congress was acting pursuant to

section 5 of the Fourteenth Amendment or other of its remedial powers, or when a court is acting to remedy proven discrimination. But

a countervailing consideration was the impact of such discrimination on disadvantaged non-minorities. Two cases illustrate the latter point. In Wygant v. Jackson Board of Education,

1790 the Court

invalidated a provision of a collective bargaining agreement giving

minority teachers a preferential protection from layoffs. In United

1786 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. 448 U.S. at 473–80.

The program was an exercise of Congress’s spending power, but the constitutional

objections raised had not been previously resolved in that context. The plurality therefore turned to Congress’s regulatory powers, which in this case undergirded the spending power, and found the power to lie in the Commerce Clause with respect to private contractors and in section 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.

1787 448 U.S. at 484–85, 489 (Chief Justice Burger), 513–15 (Justice Powell).

1788 448 U.S. at 484–89 (Chief Justice Burger), 514–515 (Justice Powell), 520–

521 (Justice Marshall).

1789 Guidance on constitutional issues is not necessarily afforded by cases arising under Title VII of the Civil Rights Act, the Court having asserted that “the statutory prohibition with which the employer must contend was not intended to extend

as far as that of the Constitution,” and that “voluntary employer action can play a

crucial role in furthering Title VII’s purpose of eliminating the effects of discrimination in the workplace.” Johnson v. Transportation Agency, 480 U.S. 616, 628 n.6,

630 (1987) (upholding a local governmental agency’s voluntary affirmative action plan

predicated upon underrepresentation of women rather than upon past discriminatory practices by that agency) (emphasis in original). The constitutionality of the

agency’s plan was not challenged. See id. at 620 n.2.

1790 476 U.S. 267 (1986).

AMENDMENT 14—RIGHTS GUARANTEED 2149
States v. Paradise,

1791 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.1792 By contrast, a plurality of

Justices in Paradise viewed the remedy in that case as affecting

non-minorities less harshly than did the layoffs in Wygant, because

the promotion quota would merely delay promotions of those affected, rather than cause the loss of their jobs.1793

A clear distinction was then drawn between federal and state

power to apply racial classifications. In City of Richmond v. J.A.

Croson Co.,

1794 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 1795 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.1796

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

1791 480 U.S. 149 (1987).

1792 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).

1793 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).

1794 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.

1795 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.

1796 497 U.S. at 564–65.

2150 AMENDMENT 14—RIGHTS GUARANTEED
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.” 1797 The overinclusive definition of minorities, including U.S.

citizens who are “Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts,” also “impugn[ed] the city’s claim of remedial motivation,” there having been “no evidence” of any past discrimination against non-blacks in the Richmond construction industry.1798

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.1799

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.” 1800

Metro Broadcasting was 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.1801 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.

1797 488 U.S. at 501–02.

1798 488 U.S. at 506.

1799 488 U.S. at 508.

1800 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).

1801 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).

AMENDMENT 14—RIGHTS GUARANTEED 2151
The distinction between federal and state power to apply racial

classifications, however, proved ephemeral. The Court ruled in Adarand

Constructors, Inc. v. Pena 1802 that racial classifications imposed by

federal law must be analyzed by the same strict scrutiny standard

that is applied to evaluate state and local classifications based on

race. The Court overruled Metro Broadcasting and, to the extent

that it applied a review standard less stringent than strict scrutiny, Fullilove v. Klutznick. Strict scrutiny is to be applied regardless of the race of those burdened or benefitted by the particular

classification; there is no intermediate standard applicable to “benign” racial classifications. The underlying principle, the Court explained, is that the Fifth and Fourteenth Amendments protect persons, not groups. It follows, therefore, that classifications based on

the group characteristic of race “should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection

. . . has not been infringed.” 1803

By applying strict scrutiny, the Court was in essence affirming

Justice Powell’s individual opinion in Bakke, which posited a strict

scrutiny analysis of affirmative action. There remained the question, however, whether Justice Powell’s suggestion that creating a

diverse student body in an educational setting was a compelling governmental interest that would survive strict scrutiny analysis. It

engendered some surprise, then, that the Court essentially reaffirmed Justice Powell’s line of reasoning in the cases of Grutter v.

Bollinger,

1804 and Gratz v. Bollinger.1805

In Grutter, the Court considered the admissions policy of the

University of Michigan Law School, which requires admissions officials to evaluate each applicant based on all the information available in their file (e.g., grade point average, Law School Admissions

Test score, personal statement, recommendations) and on “soft” variables (e.g., strength of recommendations, quality of undergraduate

institution, difficulty of undergraduate courses). The policy also considered “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native

Americans . . . .” Although, the policy did not limit the seeking of

diversity to “ethnic and racial” classifications, it did seek a “critical

1802 515 U.S. 200 (1995). This was a 5–4 decision. Justice O’Connor’s opinion

for Court was joined by Chief Justice Rehnquist, and by Justices Kennedy, Thomas,

and—to the extent not inconsistent with his own concurring opinion—Scalia. Justices Stevens, Souter, Ginsburg and Breyer dissented.

1803 515 U.S. at 227 (emphasis original).

1804 539 U.S. 306 (2003).

1805 539 U.S. 244 (2003).

2152 AMENDMENT 14—RIGHTS GUARANTEED
mass” of minorities so that those students would not feel isolated.1806

The Grutter Court found that student diversity provided significant benefits, not just to the students who might have otherwise

not been admitted, but also to the student body as a whole. These

benefits include “cross-racial understanding,” the breakdown of racial stereotypes, the improvement of classroom discussion, and the

preparation of students to enter a diverse workforce. Further, the

Court emphasized the role of education in developing national leaders. Thus, the Court found that such efforts were important to “cultivate a set of leaders with legitimacy in the eyes of the citizenry.” 1807 As the university did not rely on quotas, but rather relied

on “flexible assessments” of a student’s record, the Court found that

the university’s policy was narrowly tailored to achieve the substantial governmental interest of achieving a diverse student body.1808

The law school’s admission policy in Grutter, however, can be

contrasted with the university’s undergraduate admission policy. In

Gratz, the Court evaluated the undergraduate program’s “selection

index,” which assigned applicants up to 150 points based on a variety of factors similar to those considered by the law school. Applicants with scores over 100 were generally admitted, while those with

scores of less than 100 fell into categories that could result in either admittance, postponement, or rejection. Of particular interest

to the Court was that an applicant would be entitled to 20 points

based solely upon his or her membership in an underrepresented

racial or ethnic minority group. The policy also included the “flagging” of certain applications for special review, and underrepresented minorities were among those whose applications were

flagged.1809

The Court in Gratz struck down this admissions policy, relying

again on Justice Powell’s decision in Bakke. Although Justice Pow1806 539 U.S. at 316.

1807 539 U.S. at 335.

1808 Grutter, 539 U.S. at 315. While an educational institution will receive deference in its judgment as to whether diversity is essential to its educational mission,

the courts must closely scrutinize the means by which this goal is achieved. Thus,

the institution will receive no deference regarding the question of the necessity of

the means chosen and will bear the burden of demonstrating that “each applicant is

evaluated as an individual and not in a way that an applicant’s race or ethnicity is

the defining feature of his or her application.” Fisher v. Univ. of Tex. at Austin (Fisher

I), 570 U.S. ___, No. 11–345, slip op. at 10 (2013) (citation omitted). In its 2013 decision in Fisher, the Court did not rule on the substance of the challenged affirmative action program and instead remanded the case so that the reviewing appellate

court could apply the correct standard of review. However, the Court issued a subsequent decision in Fisher addressing the Texas program directly. See Fisher v. Univ.

of Tex. at Austin (Fisher II), 579 U.S. ___, No. 14–981, slip op. (2016).

1809 539 U.S. at 272–73.

AMENDMENT 14—RIGHTS GUARANTEED 2153
ell had thought it permissible that “race or ethnic background . . .

be deemed a ‘plus’ in a particular applicant’s file,” 1810 the system

he envisioned involved individualized consideration of all elements

of an application to ascertain how the applicant would contribute

to the diversity of the student body. According to the majority opinion in Gratz, the undergraduate policy did not provide for such individualized consideration. Instead, by automatically distributing 20

points to every applicant from an “underrepresented minority” group,

the policy effectively admitted every qualified minority applicant.

Although it acknowledged that the volume of applications could make

individualized assessments an “administrative challenge,” the Court

found that the policy was not narrowly tailored to achieve respondents’ asserted compelling interest in diversity.1811

The Court subsequently revisited the question of affirmative action in undergraduate education in its 2016 decision in Fisher v.

University of Texas at Austin, upholding the University of Texas at

Austin’s (UT’s) use of “scores” based, in part, on race in filling approximately 25% of the slots in its incoming class that were not

required by statute to be awarded to Texas high school students

who finished in the top 10% of their graduating class (Top Ten Percent Plan or TTPP).1812 The Court itself suggested that the “sui generis” nature of the UT program,1813 coupled with the “fact that this

case has been litigated on a somewhat artificial basis” because the

record lacked information about the impact of Texas’s TTPP,1814 may

limit the decision’s value for “prospective guidance.” 1815 Nonetheless, certain language in the Court’s decision, along with its application of the three “controlling factors” set forth in the Court’s 2013

decision in Fisher,

1816 seem likely to have some influence, as they

represent the Court’s most recent jurisprudence on whether and when

institutions of higher education may take race into consideration

1810 438 U.S. at 317.

1811 438 U.S. at 284–85.

1812 Fisher II, slip. op. at 3–4.

1813 Id. at 8.

1814 Id. at 10.

1815 Id.

1816 Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. ___, No. 11–345, slip

op. at 10 (2013). The first of these principles is that strict scrutiny requires the university to demonstrate with clarity that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary

. . . to the accomplishment of its purpose.” Id. at 7. The second principle is that the

decision to pursue the educational benefits that flow from student body diversity is,

in substantial measure, an “academic judgment” to which “some, but not complete,

judicial deference is proper.” Id. at 9. The third is that no deference is owed in determining whether the use of race is narrowly tailored; rather, the university bears

burden of proving a non-racial approach would not promote its interests “about as

well” and “at tolerable administrative expense.” Id. at 11.

2154 AMENDMENT 14—RIGHTS GUARANTEED
in their admission decisions. Specifically, the 2016 Fisher decision

began and ended with broad language recognizing constraints on

the implementation of affirmative action programs in undergraduate education, including language that highlights the university’s

“continuing obligation to satisfy the burden of strict scrutiny in light

of changing circumstances” 1817 and emphasized that “[t]he Court’s

affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without

refinement.” 1818 Nonetheless, while citing these constraints, the 2016

Fisher decision held that the challenged UT program did not run

afoul of the Fourteenth Amendment. In particular, the Court concluded that the state’s compelling interest in the case was not in

enrolling a certain number of minority students, but in obtaining

the educational benefits that flow from student body diversity, noting that the state cannot be faulted for not specifying a particular

level of minority enrollment.1819 The Court further concurred with

UT’s view that the alleged “critical mass” of minority students achieved

under the 10% plan was not dispositive, as the university had found

that it was insufficient,1820 and that UT had found other means of

promoting student-body diversity were unworkable.1821 In so concluding, the Court held that the university had met its burden in

surviving strict scrutiny by providing sworn affidavits from UT officials and internal assessments based on months of studies, retreats, interviews, and reviews of data that amounted, in the view

of the Court, to a “reasoned, principled explanation” of the university’s interests and its efforts to achieve those interests in a manner that was no broader than necessary.1822 The Court refused to

question the motives of university administrators and did not further scrutinize the underlying evidence relied on by the respondents, which may indicate that there are some limits to the degree

in which the Court will evaluate a race-conscious admissions policy

1817 Fisher II, slip op. at 10.

1818 Id.

1819 Id. at 11–13. On the other hand, the Court emphasized that the university

cannot claim educational benefits in “diversity writ large.” Id. at 12. “A university’s

goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.” Id. The Court also noted

that the asserted goals of UT’s affirmative action program “mirror” those approved

in earlier cases (e.g., ending stereotypes and promoting cross-racial understanding).

Id. at 13.

1820 Id. at 13–15. The Court further emphasized that the fact that race allegedly plays a minor role in UT admissions, given that approximately 75% of the incoming class is admitted under the 10% plan, shows that the challenged use of race

in determining the composition of the rest of the incoming class is narrowly tailored, not that it is unconstitutional. Id. at 15.

1821 Id. at 15–19.

1822 Id. at 13 (“Petitioner’s contention that the University’s goal was insufficiently concrete is rebutted by the record”).

AMENDMENT 14—RIGHTS GUARANTEED 2155
once the university has provided sufficient support for its approach.1823

While institutions of higher education were striving to increase

racial diversity in their student populations, state and local governments were engaged in a similar effort with respect to elementary

and secondary schools. Whether this goal could be constitutionally

achieved after Grutter and Gratz, however, remained unclear, especially as the type of individualized admission considerations found

in higher education are less likely to have useful analogies in the

context of public school assignments. Thus, for instance, in Parents

Involved in Community Schools v. Seattle School District No. 1,

1824

the Court rejected plans in both Seattle, Washington and Jefferson

County, Kentucky, that, in order reduce what the Court found to be

“de facto” racial imbalance in the schools, used “racial tiebreakers”

to determine school assignments.1825 As in Bakke, numerous opinions by a fractured Court led to an uncertain resolution of the issue.

In an opinion by Chief Justice Roberts, a majority of the Court

in Parents Involved in Community Schools agreed that the plans

before the Court did not include the kind of individualized considerations that had been at issue in the university admissions process in Grutter, but rather focused primarily on racial considerations.1826 Although a majority of the Court found the plans

unconstitutional, only four Justices (including the Chief Justice) concluded that alleviating “de facto” racial imbalance in elementary and

secondary schools could never be a compelling governmental interest. Justice Kennedy, while finding that the school plans at issue

were unconstitutional because they were not narrowly tailored,1827

1823 Id. at 13–14.

1824 551 U.S. 701 (2007). Another case involving racial diversity in public schools,

Meredith v. Jefferson County Board of Education, was argued separately before the

Court on the same day, but the two cases were subsequently consolidated and both

were addressed in the cited opinion.

1825 In Seattle, students could choose among 10 high schools in the school district, but, if an oversubscribed school was not within 10 percentage points of the

district’s overall white/nonwhite racial balance, the district would assign students

whose race would serve to bring the school closer to the desired racial balance. 127

S. Ct. at 2747. In Jefferson County, assignments and transfers were limited when

such action would cause a school’s black enrollment to fall below 15 percent or exceed 50 percent. Id. at 2749.

1826 127 S. Ct. at 2753–54. The Court also noted that, in Grutter, the Court had

relied upon “considerations unique to institutions of higher education.” Id. at 2574

(finding that, as stated in Grutter, 539 U.S. at 329, because of the “expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition”).

1827 In his analysis of whether the plans were narrowly tailored to the governmental interest in question, Justice Kennedy focused on a lack of clarity in the administration and application of Kentucky’s plan and the use of the “crude racial cat2156 AMENDMENT 14—RIGHTS GUARANTEED
suggested in separate concurrence that relieving “racial isolation”

could be a compelling governmental interest. The Justice even envisioned the use of plans based on individual racial classifications

“as a last resort” if other means failed.1828 As Justice Kennedy’s concurrence appears to represent a narrower basis for the judgment of

the Court than does Justice Roberts’ opinion, it appears to represent, for the moment, the controlling opinion for the lower courts.1829

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.” 1830 Thus, one of the earliest equal protection decisions struck down the administration of a

facially lawful licensing ordinance that was being applied to discriminate against Chinese.1831 In many subsequent cases, however,

the Court recognized a permissible state interest in distinguishing

between its citizens and aliens by restricting enjoyment of reegories” of “white” and “non-white” (which failed to distinguish among racial minorities)

in the Seattle plan. 127 S. Ct. at 2790–91.

1828 127 S. Ct. at 2760–61. Some other means suggested by Justice Kennedy

(which by implication could be constitutionally used to address racial imbalance in

schools) included strategic site selection for new schools, the redrawing of attendance zones, the allocation of resources for special programs, the targeted recruiting

of students and faculty, and the tracking of enrollments, performance, and other statistics by race.

1829 Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court

decides a case and no single rationale enjoys the assent of five Justices, ‘the holding

of the Court may be viewed as that position taken by those Members who concurred

in the judgment on the narrowest grounds . . . .’ ”).

1830 Graham v. Richardson, 403 U.S. 365, 371 (1971). See also Yick Wo v. Hopkins,

118 U.S. 356, 369 (1886); Truax v. Raich, 239 U.S. 33, 39 (1915); Takahashi v. Fish

& Game Comm’n, 334 U.S. 410, 420 (1948). Aliens, even unlawful aliens, are “persons” to whom the Fifth and Fourteenth Amendments apply. Plyler v. Doe, 457 U.S.

202, 210–16 (1982). The Federal Government may not discriminate invidiously against

aliens, Mathews v. Diaz, 426 U.S. 67, 77 (1976). However, because of the plenary

power delegated by the Constitution to the national government to deal with aliens

and naturalization, federal classifications are judged by less demanding standards

than are those of the states, and many classifications that would fail if attempted

by the states have been sustained because Congress has made them. Id. at 78–84;

Fiallo v. Bell, 430 U.S. 787 (1977). Additionally, state discrimination against aliens

may fail because it imposes burdens not permitted or contemplated by Congress in

its regulations of admission and conditions of admission. Hines v. Davidowitz, 312

U.S. 52 (1941); Toll v. Moreno, 458 U.S. 1 (1982). Such state discrimination may

also violate treaty obligations and be void under the Supremacy Clause, Askura v.

City of Seattle, 265 U.S. 332 (1924), and some federal civil rights statutes, such as

42 U.S.C. § 1981, protect resident aliens as well as citizens. Graham v. Richardson,

403 U.S. at 376–80.

1831 Yick Wo v. Hopkins, 118 U.S. 356 (1886).

AMENDMENT 14—RIGHTS GUARANTEED 2157
sources and public employment to its own citizens.1832 But, in

Hirabayashi v. United States,

1833 the Court announced that “[d]istinctions between citizens solely because of their ancestry” were “odious to a free people whose institutions are founded upon the doctrine of equality.” And, in Korematsu v. United States,

1834 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 that appeared to call into question the rationale of the “particular interest” doctrine under which earlier discrimination had been

justified. In the 1948 decision, the Court held void a statute barring issuance of commercial fishing licenses to persons “ineligible

to citizenship,” which in effect meant resident alien Japanese.1835

“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.” 1836

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.1837 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.

1832 McGready v. Virginia, 94 U.S. 391 (1877); Patsone v. Pennsylvania, 232 U.S.

138 (1914) (limiting aliens’ rights to develop natural resources); Hauenstein v. Lynham,

100 U.S. 483 (1880); Blythe v. Hinckley, 180 U.S. 333 (1901) (restriction of devolution of property to aliens); Terrace v. Thompson, 263 U.S. 197 (1923); Porterfield v.

Webb, 263 U.S. 225 (1923); Webb v. O’Brien, 263 U.S. 313 (1923); Frick v. Webb,

263 U.S. 326 (1923) (denial of right to own and acquire land); Heim v. McCall, 239

U.S. 175 (1915); People v. Crane, 214 N.Y. 154, 108 N.E. 427, aff’d, 239 U.S. 195

(1915) (barring public employment to aliens); Ohio ex rel. Clarke v. Deckebach, 274

U.S. 392 (1927) (prohibiting aliens from operating poolrooms). The Court struck down

a statute restricting the employment of aliens by private employers, however. Truax

v. Raich, 239 U.S. 33 (1915).

1833 320 U.S. 81, 100 (1943).

1834 323 U.S. 214, 216 (1944).

1835 Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948).

1836 334 U.S. at 420. The decision was preceded by Oyama v. California, 332

U.S. 633 (1948), which was also susceptible of being read as questioning the premise of the earlier cases.

1837 Graham v. Richardson, 403 U.S. 365, 372 (1971).

2158 AMENDMENT 14—RIGHTS GUARANTEED
In Sugarman v. Dougall,

1838 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,1839 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.” 1840 But a flat

ban upon much of the state’s career public service, both of policymaking and non-policy-making jobs, ran afoul of the requirement

that in achieving a valid interest through the use of a suspect classification the state must employ means that are precisely drawn in

light of the valid purpose.1841

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.1842 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.1843

1838 413 U.S. 634 (1973).

1839 413 U.S. at 647–49. See also Foley v. Connelie, 435 U.S. 291, 296 (1978).

Aliens can be excluded from voting, Skatfe v. Rorex, 553 P.2d 830 (Colo. 1976), appeal dismissed for lack of substantial federal question, 430 U.S. 961 (1977), and can

be excluded from service on juries. Perkins v. Smith, 370 F. Supp. 134 (D. Md. 1974)

(3-judge court), aff’d, 426 U.S. 913 (1976).

1840 Sugarman v. Dougall, 413 U.S. 634, 647 (1973). Such state restrictions are

“not wholly immune from scrutiny under the Equal Protection Clause.” Id. at 648.

1841 Justice Rehnquist dissented. 413 U.S. at 649. In the course of the opinion,

the Court held inapplicable the doctrine of “special public interest,” the idea that a

State’s concern with the restriction of the resources of the State to the advancement

and profit of its citizens is a valid basis for discrimination against out-of-state citizens and aliens generally, but it did not declare the doctrine invalid. Id. at 643–45.

The “political function” exception is inapplicable to notaries public, who do not perform functions going to the heart of representative government. Bernal v. Fainter,

467 U.S. 216 (1984).

1842 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).

1843 Examining Bd. v. Flores de Otero, 426 U.S. 572 (1976). Because 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 immateAMENDMENT 14—RIGHTS GUARANTEED 2159
In Nyquist v. Mauclet,

1844 the Court seemed to expand the doctrine. The statute that was challenged 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, because

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.” 1845 Two proffered justifications were

held insufficient to meet the high burden imposed by the strict scrutiny doctrine.

In the following Term, however, 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.’ ” 1846 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.’ ” 1847 Discrimination by a state against aliens is not subrial, as the same result would be achieved in either case. The quoted expression is

from Truax v. Raich, 239 U.S. 33, 41 (1915).

1844 432 U.S. 1 (1977).

1845 432 U.S. at 9. Chief Justice Burger and Justices Powell, Rehnquist, and

Stewart dissented. Id. at 12, 15, 17. Justice Rehnquist’s dissent argued that the nature of the disqualification precluded it from being considered suspect.

1846 Foley v. Connelie, 435 U.S. 291, 295 (1978). The opinion was by Chief Justice Burger and the quoted phrase was from his dissent in Nyquist v. Mauclet, 432

U.S. 1, 14 (1977). Justices Marshall, Stevens, and Brennan dissented. Id. at 302,

307.

1847 435 U.S. at 295–96. Formally following Sugarman v. Dougall, supra, the opinion considerably enlarged the exception noted in that case; see also Nyquist v. Mauclet,

432 U.S. 1, 11 (1977) (emphasizing the “narrowness of the exception”). Concurring

in Foley, 435 U.S. at 300, Justice Stewart observed that “it is difficult if not impossible to reconcile the Court’s judgment in this case with the full sweep of the reasoning and authority of some of our past decisions. It is only because I have become

increasingly doubtful about the validity of those decisions (in at least some of which

I concurred) that I join the opinion of the Court in this case.” On the other hand,

Justice Blackmun, who had written several of the past decisions, including Mauclet,

concurred also, finding the case consistent. Id.

2160 AMENDMENT 14—RIGHTS GUARANTEED
ject to strict scrutiny, but need meet only the rational basis test. It

is therefore permissible to reserve to citizens offices having the “most

important policy responsibilities,” a principle drawn from Sugarman, but the critical factor in this case is its 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.’ . . . ” 1848

Continuing to enlarge the exception, the Court in Ambach v.

Norwick 1849 upheld a bar to qualifying as a public school teacher

for resident aliens who have not manifested an intention to apply

for citizenship. The “governmental function” test took on added significance, the Court saying that the “distinction between citizens

and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State.” 1850 Thus, “governmental entities, when exercising the functions of government,

have wider latitude in limiting the participation of noncitizens.” 1851 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.” 1852 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,

1853 the Court, by a 5-to-4 vote,

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

1848 35 U.S. at 296, 297, 298. 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.

1849 411 U.S. 68 (1979). The opinion, by Justice Powell, was joined by Chief Justice Burger and Justices Stewart, White, and Rehnquist. Dissenting were Justices

Blackmun, Brennan, Marshall, and Stevens. The disqualification standard was of

course, that held invalid as a disqualification for receipt of educational assistance in

Nyquist v. Mauclet, 432 U.S. 1 (1977).

1850 Ambach v. Norwick, 441 U.S. 68, 75 (1979).

1851 441 U.S. at 75.

1852 441 U.S. at 75–80. The quotation, id. at 76, is from Sugarman v. Dougall,

413 U.S. 634, 647 (1973).

1853 454 U.S. 432 (1982).

AMENDMENT 14—RIGHTS GUARANTEED 2161
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.” 1854 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.” 1855

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 generally and to

eligibility for public benefits, its classifications with an adverse impact on aliens will be strictly scrutinized and usually fail. Third,

when government acts in its sovereign capacity—when it acts within

its constitutional prerogatives and responsibilities to establish and

operate its own government—its decisions with respect to the citizenship qualifications of an appropriately designated class of public office holders will be subject only to traditional rational basis

scrutiny.1856 However, the “political function” standard is elastic, and

so long as disqualifications are attached to specific occupations 1857

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.1858 Because it was clear that the undocumented status of the children was

relevant to valid government goals, and because the Court had previously held that access to education was not a “fundamental interest” that triggered strict scrutiny of governmental distinctions relat1854 454 U.S. at 442.

1855 454 U.S. at 445.

1856 454 U.S. at 438–39.

1857 Thus, the statute in Chavez-Salido applied to such positions as toll-service

employees, cemetery sextons, fish and game wardens, and furniture and bedding inspectors, and yet the overall classification was deemed not so ill-fitting as to require

its voiding.

1858 Plyler v. Doe, 457 U.S. 432 (1982). Joining the opinion of the Court were

Justices Brennan, Marshall, Blackmun, Powell, and Stevens. Dissenting were Chief

Justice Burger and Justices White, Rehnquist, and O’Connor. Id. at 242.

2162 AMENDMENT 14—RIGHTS GUARANTEED
ing to education,1859 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 children would stamp them with an “enduring disability” that would harm both them and the state all their

lives.1860 The Court evaluated each of the state’s attempted justifications and found none of them satisfying the level of review demanded.1861 It seems evident that Plyler v. Doe is a unique case

and that, whatever it may stand for doctrinally, a sufficiently similar factual situation calling for application of its standards is unlikely to arise.

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 that 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.” 1862 On the same premise, a statute restricting the franchise to men was sustained.1863

1859 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.

1860 457 U.S. at 223–24.

1861 Rejected state interests included preserving limited resources for its lawful

residents, deterring an influx of illegal aliens, avoiding the special burden caused

by these children, and serving children who were more likely to remain in the state

and contribute to its welfare. 457 U.S. at 227–30.

1862 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 enAMENDMENT 14—RIGHTS GUARANTEED 2163
The greater number of cases have involved legislation aimed to

protect women from oppressive working conditions, as by prescribing maximum hours 1864 or minimum wages 1865 or by restricting some

of the things women could be required to do.1866 A 1961 decision

upheld a state law that required jury service of men but that 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.” 1867 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.1868 In a highly controversial ruling, the Court sustained a state law that 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.1869

A wide variety of sex discrimination by governmental and private parties, including sex discrimination in employment and even

the protective labor legislation previously sustained, is now proscribed by federal law. In addition, federal law requires equal pay

gaged 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).

1863 Minor v. Happersett, 88 U.S. (21 Wall) 162 (1875) (privileges and immunities).

1864 Muller v. Oregon, 208 U.S. 412 (1908); Dominion Hotel v. Arizona, 249 U.S.

265 (1919).

1865 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

1866 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.

1867 Hoyt v. Florida, 368 U.S. 57, 62 (1961).

1868 Cronin v. Adams, 192 U.S. 108 (1904).

1869 Goesaert v. Cleary, 335 U.S. 464 (1948).

2164 AMENDMENT 14—RIGHTS GUARANTEED
for equal work.1870 Some states have followed suit.1871 While the proposed Equal Rights Amendment was before the states and ultimately failed to be ratified,1872 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 of sex classifications.

In Reed v. Reed,

1873 the Court held invalid a state probate law

that 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.1874

1870 Thus, 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).

1871 See, e.g., Roberts v. United States Jaycees, 468 U.S. 609 (1984) (state prohibition on gender discrimination in aspects of public accommodation, as applied to

membership in a civic organization, is justified by compelling state interest).

1872 On the Equal Rights Amendment, see discussion of “Ratification,” supra.

1873 404 U.S. 71 (1971).

1874 404 U.S. at 75–77. Cf. Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972). A

statute similar to that in Reed was before the Court in Kirchberg v. Feenstra, 450

AMENDMENT 14—RIGHTS GUARANTEED 2165
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.” 1875 Thus, after several years in which sex distinctions were more often voided than sustained without a clear statement of the standard of review,1876 a majority of the Court has arrived at the intermediate standard that many had thought it was

applying in any event.1877 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

U.S. 455 (1981) (invalidating statute giving husband unilateral right to dispose of

jointly owned community property without wife’s consent).

1875 Craig v. Boren, 429 U.S. 190, 197 (1976); Califano v. Goldfarb, 430 U.S. 199,

210–11 (1977) (plurality opinion); Califano v. Webster, 430 U.S. 313, 316–317 (1977);

Orr v. Orr, 440 U.S. 268, 279 (1979); Caban v. Mohammed, 441 U.S. 380, 388 (1979);

Massachusetts Personnel Adm’r v. Feeney, 442 U.S. 256, 273 (1979); Califano v. Westcott,

443 U.S. 76, 85 (1979); Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150

(1980); Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981); Mississippi Univ. for Women

v. Hogan, 458 U.S. 718, 723–24 (1982). But see Michael M. v. Superior Court, 450

U.S. 464, 468–69 (1981) (plurality opinion); id. at 483 (Justice Blackmun concurring); Rostker v. Goldberg, 453 U.S. 57, 69–72 (1981). The test is the same whether

women or men are disadvantaged by the classification, Orr v. Orr, 440 U.S. at 279;

Caban v. Mohammed, 441 U.S. at 394; Mississippi Univ. for Women v. Hogan, 458

U.S. at 724, although Justice Rehnquist and Chief Justice Burger strongly argued

that when males are disadvantaged only the rational basis test is appropriate. Craig

v. Boren, 429 U.S. at 217, 218–21; Califano v. Goldfarb, 430 U.S. at 224. That adoption of a standard has not eliminated difficulty in deciding such cases should be evident by perusal of the cases following.

1876 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.

1877 Although their concurrences in Craig v. Boren, 429 U.S. 190, 210, 211 (1976),

indicate some reticence about express reliance on intermediate scrutiny, Justices Powell and Stevens have since joined or written opinions stating the test and applying

it. E.g., Caban v. Mohammed, 441 U.S. 380, 388 (1979) (Justice Powell writing the

opinion of the Court); Parham v. Hughes, 441 U.S. 347, 359 (1979) (Justice Powell

concurring); Califano v. Goldfarb, 430 U.S. 199, 217 (1977) (Justice Stevens concurring); Caban v. Mohammed, 441 U.S. at 401 (Justice Stevens dissenting). Chief Justice Burger and Justice Rehnquist have not clearly stated a test, although their deference to legislative judgment approaches the traditional scrutiny test. But see Califano

v. Westcott, 443 U.S. at 93 (joining Court on substantive decision). And cf. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 734–35 (1982) (Justice Blackmun

dissenting).

2166 AMENDMENT 14—RIGHTS GUARANTEED
serves the end and whether a less discriminatory one would serve

that end without substantial loss to the government.1878

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.1879 Similarly, a

state jury system that in effect excluded almost all women was deemed

to be based upon an overbroad generalization about the role of women

as a class in society, and the administrative convenience served could

not justify it.1880

Even when the negative “stereotype” that is evoked is that of a

stereotypical male, the Court has evaluated this as potential gender discrimination. In J. E. B. v. Alabama ex rel. T. B.,

1881 the Court

addressed a paternity suit where men had been intentionally excluded from a jury through peremptory strikes. The Court rejected

as unfounded the argument that men, as a class, would be more

sympathetic to the defendant, the putative father. The Court also

determined that gender-based exclusion of jurors would undermine

the litigants’ interest by tainting the proceedings, and in addition

would harm the wrongfully excluded juror.

Assumptions about the relative positions of the sexes, however,

are not without some basis in fact, and sex may sometimes be a

reliable proxy for the characteristic, such as need, with which it is

the legislature’s actual intention to deal. But heightened scrutiny

1878 The test is thus the same as is applied to illegitimacy classifications, although with apparently more rigor when sex is involved.

1879 Stanton v. Stanton, 421 U.S. 7 (1975). See also Stanton v. Stanton, 429 U.S.

501 (1977). Assumptions about the traditional roles of the sexes afford no basis for

support of classifications under the intermediate scrutiny standard. E.g., Orr v. Orr,

440 U.S. 268, 279–80 (1979); Parham v. Hughes, 441 U.S. 347, 355 (1979); Kirchberg

v. Feenstra, 450 U.S. 455 (1981). Justice Stevens in particular has been concerned

whether legislative classifications by sex simply reflect traditional ways of thinking

or are the result of a reasoned attempt to reach some neutral goal, e.g., Califano v.

Goldfarb, 430 U.S. 199, 222–23 (1978) (concurring), and he will sustain some otherwise impermissible distinctions if he finds the legislative reasoning to approximate

the latter approach. Caban v. Mohammed, 441 U.S. 380, 401 (1979) (dissenting).

1880 Taylor v. Louisiana, 419 U.S. 522 (1975). The precise basis of the decision

was the Sixth Amendment right to a representative cross section of the community,

but the Court dealt with and disapproved the reasoning in Hoyt v. Florida, 368 U.S.

57 (1961), in which a similar jury selection process was upheld against due process

and equal protection challenge.

1881 511 U.S. 127 (1994).

AMENDMENT 14—RIGHTS GUARANTEED 2167
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 that 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 18.1882 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.1883

Invalidating an Alabama law imposing alimony obligations upon

males but not upon females, the Court in Orr v. Orr acknowledged

that assisting needy spouses was a legitimate and important governmental objective. Ordinarily, therefore, the Court would have considered whether sex was a sufficiently accurate proxy for dependency, and, if it found that it was, then it would have concluded

that the classification based on sex had “a fair and substantial relation to the object of the legislation.” 1884 However, the Court observed that the state already conducted individualized hearings with

respect to the need of the wife, so that with little if any additional

burden needy males could be identified and helped. The use of the

sex standard as a proxy, therefore, was not justified because it needlessly burdened needy men and advantaged financially secure women

whose husbands were in need.1885

Various forms of discrimination between unwed mothers and unwed fathers received different treatments based on the Court’s per1882 Craig v. Boren, 429 U.S. 190 (1976).

1883 429 U.S. at 198, 199–200, 201–04.

1884 440 U.S. 268, 281 (1979).

1885 440 U.S. at 281–83. An administrative convenience justification was not available, therefore. Id. at 281 & n.12. Although such an argument has been accepted as

a sufficient justification in at least some illegitimacy cases, Mathews v. Lucas, 427

U.S. 495, 509 (1976), it has neither wholly been ruled out nor accepted in sex cases.

In Lucas, 427 U.S. at 509–10, the Court interpreted Frontiero v. Richardson, 411

U.S. 677 (1973), as having required a showing at least that for every dollar lost to a

recipient not meeting the general purpose qualification a dollar is saved in administrative expense. In Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 152 (1980),

the Court said that “[i]t may be that there are levels of administrative 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).

2168 AMENDMENT 14—RIGHTS GUARANTEED
ception 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.1886

On the other hand, the Court sustained a Georgia statute that

permitted the mother of an illegitimate child to sue for the wrongful death of the child but that allowed the father to sue only if he

had legitimated the child and there is no mother.1887 Similarly, the

Court let stand, under the Fifth Amendment, a federal statute that

required that, in order for an illegitimate child born overseas to gain

citizenship, a citizen father, unlike a citizen mother, must acknowledge or legitimate the child before the child’s 18th birthday.1888 The

Court emphasized the ready availability of proof of a child’s maternity as opposed to paternity, but the dissent questioned whether

1886 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).

1887 Parham v. Hughes, 441 U.S. 347, 361 (1979). There was no opinion of the

Court, but both opinions making up the result emphasized that the objective of the

state—to avoid difficulties in proving paternity—was an important one and was advanced by the classification. The plurality opinion determined that the statute did

not invidiously discriminate against men as a class; it was no overbroad generalization but proceeded from the fact that only men could legitimate children by unilateral action. The sexes were not similarly situated, therefore, and the classification

recognized that. As a result, all that was required was that the means be a rational

way of dealing with the problem of proving paternity. Id. at 353–58. Justice Powell

found the statute valid because the sex-based classification was substantially related to the objective of avoiding problems of proof in proving paternity. He also

emphasized that the father had it within his power to remove the bar by legitimating the child. Id. at 359. Justices White, Brennan, Marshall, and Blackmun, who

had been in the majority in Caban, dissented.

1888 Nguyen v. INS, 533 U.S. 53 (2001). See also Miller v. Albright, 523 U.S. 420

(1998) (opinion by Justice Stevens, joined by Justice Rehnquist) (equal protection

not violated where paternity of a child of a citizen mother is established at birth,

but child of citizen father must establish paternity by age 18).

AMENDMENT 14—RIGHTS GUARANTEED 2169
such a distinction was truly justified under strict scrutiny considering the ability of modern techniques of DNA paternity testing to

settle concerns about legitimacy.

As in the instance of illegitimacy classifications, the issue of sex

qualifications for the receipt of governmental financial benefits has

divided the Court and occasioned close distinctions. A statutory scheme

under which a serviceman could claim his spouse as a “dependent”

for allowances while a servicewoman’s spouse was not considered a

“dependent” unless he was shown in fact to be dependent upon her

for more than one half of his support was held an invalid dissimilar treatment of similarly situated men and women, not justified

by the administrative convenience rationale.1889 In Weinberger v.

Wiesenfeld,

1890 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. Because 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,

1891 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 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

1889 Frontiero v. Richardson, 411 U.S. 677 (1973).

1890 420 U.S. 636 (1975).

1891 430 U.S. 199 (1977). The dissent argued that whatever the classification used,

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.

2170 AMENDMENT 14—RIGHTS GUARANTEED
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 that ill-served the purpose

of the statute and was an ill-chosen proxy for the underlying qualification. Administrative convenience could not justify use of such a

questionable proxy.1892 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.1893

Again, the Court divided closely when it sustained two instances of classifications claimed to constitute sex discrimination.

In Rostker v. Goldberg,

1894 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

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

1892 430 U.S. at 204–09, 212–17 (Justices Brennan, White, Marshall, and Powell). Congress responded by eliminating the dependency requirement but by adding

a pension offset provision reducing spousal benefits by the amount of various other

pensions received. Continuation in this context of the Goldfarb gender-based dependency classification for a five-year “grace period” was upheld in Heckler v. Mathews,

465 U.S. 728 (1984), as directly and substantially related to the important governmental interest in protecting against the effects of the pension offset the retirement

plans of individuals who had based their plans on unreduced pre-Goldfarb payment

levels.

1893 430 U.S. at 217. Justice Stevens adhered to this view in Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 154 (1980). Note the unanimity of the Court on

the substantive issue, although it was divided on remedy, in voiding in Califano v.

Westcott, 443 U.S. 76 (1979), a Social Security provision giving benefits to families

with dependent children who have been deprived of parental support because of the

unemployment of the father but giving no benefits when the mother is unemployed.

1894 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.

AMENDMENT 14—RIGHTS GUARANTEED 2171
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.1895

In Michael M. v. Superior Court,

1896 the Court expressly adopted 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, although the law was founded on a clear sex distinction, it

was justified because it served 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.1897

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, 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 1898 upheld a state property tax exemption allowing wid1895 453 U.S. at 69–72, 78–83. The dissent argued that registered persons would

fill noncombat positions as well as combat ones and that drafting women would add

to women volunteers providing support for combat personnel and would free up men

in other positions for combat duty. Both dissents assumed without deciding that exclusion of women from combat served important governmental interests. Id. at 83,

93. The majority’s reliance on an administrative convenience argument, it should be

noted, id. at 81, was contrary to recent precedent. See discussion of Orr v. Orr, supra.

1896 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.

1897 450 U.S. at 470–74, 481. The dissents questioned both whether the pregnancy deterrence rationale was the purpose underlying the distinction and whether,

if it was, the classification was substantially related to achievement of the goal. Id.

at 488, 496.

1898 416 U.S. 351 (1974).

2172 AMENDMENT 14—RIGHTS GUARANTEED
ows 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.” 1899 And, in Schlesinger v. Ballard,

1900 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.” 1901

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 serves an important governmental objective and will be sustained if it is substantially related to achievement of that objective.1902

1899 416 U.S. at 355.

1900 419 U.S. 498 (1975).

1901 Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1975); Califano v. Goldfarb,

430 U.S. 199, 209 n.8 (1977); Orr v. Orr, 440 U.S. 268, 280–82 (1979); Wengler v.

Druggists Mutual Ins. Co., 446 U.S. 142, 150–52 (1980). In light of the stiffened

standard, Justice Stevens has called for overruling Kahn, Califano v. Goldfarb, 430

U.S. at 223–24, but Justice Blackmun would preserve that case. Orr v. Orr, 440

U.S. at 284. Cf. Regents of the Univ. of California v. Bakke, 438 U.S. 265, 302–03

(1978) (Justice Powell; less stringent standard of review for benign sex classifications).

1902 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.

AMENDMENT 14—RIGHTS GUARANTEED 2173
Many of these lines of cases converged in Mississippi University for Women v. Hogan,

1903 in which the Court stiffened and applied its standards for evaluating claimed benign distinctions benefitting 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 that 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 benefitted by the classification actually suffer a disadvantage related to the classification.” 1904 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.” 1905 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.1906

1903 458 U.S. 718 (1982).

1904 458 U.S. at 728.

1905 458 U.S. at 730. In addition to obligating the state to show that in fact there

was existing discrimination or effects from past discrimination, the Court also appeared to take the substantial step of requiring the state “to establish that the legislature intended the single-sex policy to compensate for any perceived discrimination.” Id. at 730 n.16. A requirement that the proffered purpose be the actual one

and that it must be shown that the legislature actually had that purpose in mind

would be a notable stiffening of equal protection standards.

1906 In the major dissent, Justice Powell argued that only a rational basis standard ought to be applied to sex classifications that would “ expand women’s choices,”

but that the exclusion here satisfied intermediate review because it promoted diversity of educational opportunity and was premised on the belief that single-sex colleges offer “distinctive benefits” to society. Id. at 735, 740 (emphasis by Justice), 743.

The Court noted that, because the state maintained no other single-sex public university or college, the case did not present “the question of whether States can provide ‘separate but equal’ undergraduate institutions for males and females,” id. at

720 n.1, although Justice Powell thought the decision did preclude such institutions. Id. at 742–44. See Vorchheimer v. School Dist. of Philadelphia, 532 F. 2d 880

(3d Cir. 1976) (finding no equal protection violation in maintenance of two single2174 AMENDMENT 14—RIGHTS GUARANTEED
In a 1996 case, the Court required that a state demonstrate “exceedingly persuasive justification” for gender discrimination. When

a female applicant challenged the exclusion of women from the historically male-only Virginia Military Institute (VMI), the State of

Virginia defended the exclusion of females as essential to the nature of training at the military school.1907 The state argued that

the VMI program, which included rigorous physical training, deprivation of personal privacy, and an “adversative model” that featured minute regulation of behavior, would need to be unacceptably modified to facilitate the admission of women. While recognizing

that women’s admission would require accommodation such as different housing assignments and physical training programs, the Court

found that the reasons set forth by the state were not “exceedingly

persuasive,” and thus the state did not meet its burden of justification. The Court also rejected the argument that a parallel program

established by the state at a private women’s college served as an

adequate substitute, finding that the program lacked the militarystyle structure found at VMI, and that it did not equal VMI in faculty, facilities, prestige or alumni network.

Another area presenting some difficulty is that of the relationship of pregnancy classifications to gender discrimination. In Cleveland Board of Education v. LaFleur,

1908 which was 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.1909 The absence of supportable reasons in one

sex high schools of equal educational offerings, one for males, one for females), aff’d

by an equally divided Court, 430 U.S. 703 (1977) (Justice Rehnquist not participating).

1907 United States v. Virginia, 518 U.S. 515 (1996).

1908 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).

1909 Geduldig v. Aiello, 417 U.S. 484 (1974). The Court denied that the classification was based upon “gender as such.” Classification was on the basis of pregnancy, and while only women can become pregnant, that fact alone was not determinative. “The program divides potential recipients into two groups—pregnant woman

and nonpregnant persons. While the first group is exclusively female, the second

includes members of both sexes.” Id. at 496 n.20. For a rejection of a similar atAMENDMENT 14—RIGHTS GUARANTEED 2175
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.1910 Although “illegitimacy is analogous in many respects to the personal characteristics that have been

held to be suspect when used as the basis of statutory differentiations,” the analogy is “not sufficient to require ‘our most exacting

scrutiny.’ ” The scrutiny to which it is entitled is intermediate, “not

a toothless [scrutiny],” but somewhere between that accorded race

and that accorded ordinary economic classifications. Basically, the

standard requires a determination of a legitimate legislative aim

and a careful review of how well the classification serves, or “fits,”

the aim.1911 The common rationale of all the illegitimacy cases is

not clear, is in many respects not wholly consistent,1912 but the theme

that seems to be imposed on them by the more recent cases is that

tempted distinction, see Nyquist v. Mauclet, 432 U.S. 1, 9 (1977); and Trimble v.

Gordon, 430 U.S. 762, 774 (1977). See also Phillips v. Martin-Marietta Corp., 400

U.S. 542 (1971). The Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), now extends protection to pregnant women.

1910 The first cases set the stage for the lack of consistency. Compare Levy v.

Louisiana, 391 U.S. 68 (1968), and Glona v. American Guar. & Liab. Ins. Co., 391

U.S. 73 (1968), invalidating laws that precluded wrongful death actions in cases involving the child or the mother when the child was illegitimate, in which scrutiny

was strict, with Labine v. Vincent, 401 U.S. 532 (1971), involving intestate succession, in which scrutiny was rational basis, and Weber v. Aetna Casualty & Surety

Co., 406 U.S. 164 (1972), involving a workers’ compensation statute distinguishing

between legitimates and illegitimates, in which scrutiny was intermediate.

1911 Mathews v. Lucas, 427 U.S. 495, 503–06 (1976); Trimble v. Gordon, 430 U.S.

762, 766–67 (1977); Lalli v. Lalli, 439 U.S. 259, 265 (1978). Scrutiny in previous

cases had ranged from negligible, Labine v. Vincent, 401 U.S. 532 (1971), to something approaching strictness, Jiminez v. Weinberger, 417 U.S. 628, 631–632 (1974).

Mathews itself illustrates the uncertainty of statement, suggesting at one point that

the Labine standard may be appropriate, 401 U.S. at 506, and at another that the

standard appropriate to sex classifications is to be used, id. at 510, while observing

a few pages earlier that illegitimacy is entitled to less exacting scrutiny than either

race or sex. Id. at 506. Trimble settles on intermediate scrutiny but does not assess

the relationship between its standard and the sex classification standard. See Parham

v. Hughes, 441 U.S. 347 (1979), and Caban v. Mohammed, 441 U.S. 380 (1979) (both

cases involving classifications reflecting both sex and illegitimacy interests).

1912 The major inconsistency arises from three 5-to-4 decisions. Labine v. Vincent, 401 U.S. 532 (1971), was largely overruled by Trimble v. Gordon, 430 U.S. 762

(1977), which itself was substantially limited by Lalli v. Lalli, 439 U.S. 259 (1978).

Justice Powell was the swing vote for different disposition of the latter two cases.

Thus, while four Justices argued for stricter scrutiny and usually invalidation of

such classifications, Lalli v. Lalli, 439 U.S. at 277 (Justices Brennan, White, Marshall, and Stevens dissenting), and four favor relaxed scrutiny and usually sustaining the classifications, Trimble v. Gordon, 430 U.S. at 776, 777 (Chief Justice Burger

2176 AMENDMENT 14—RIGHTS GUARANTEED
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.1913

Intestate succession rights for illegitimates has divided the Court

over the entire period. At first adverting to the broad power of the

states over descent of real property, the Court employed relaxed scrutiny to sustain a law denying illegitimates the right to share equally

with legitimates in the estate of their common father, who had acknowledged the illegitimates but who had died intestate.1914 Labine

was strongly disapproved, however, and virtually overruled in Trimble

v. Gordon,

1915 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.1916 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 unand 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).

1913 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).

1914 Labine v. Vincent, 401 U.S. 532 (1971). Weber v. Aetna Casualty & Surety

Co., 406 U.S. 164, 170 (1972), had confined the analysis of Labine to the area of

state inheritance laws in expanding review of illegitimacy classifications.

1915 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.

1916 430 U.S. at 768–70. Although 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).

AMENDMENT 14—RIGHTS GUARANTEED 2177
proved and unlikely.1917 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.1918 Fourth, the

statute did address a substantial problem, a permissible state interest, presented by the difficulties of proving paternity and avoiding

spurious claims. However, the court thought the means adopted, total exclusion, did not approach the “fit” necessary between means

and ends to survive the scrutiny appropriate to this classification.

The state court was criticized for failing “to consider the possibility

of a middle ground between the extremes of complete exclusion and

case-by-case determination of paternity. For at least some significant categories of illegitimate children of intestate men, inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing

under intestacy laws.” 1919 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,

1920 concerning a statute that permitted legitimate children to inherit automatically from both their parents,

while illegitimates 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,

1917 Trimble v. Gordon, 430 U.S. 762, 774–76 (1977). The Court cited the failure

of the state court to rely on this purpose and its own examination of the statute.

1918 430 U.S. at 773–74. This justification had been prominent in Labine v. Vincent, 401 U.S. 532, 539 (1971), and its absence had been deemed critical in Weber v.

Aetna Casualty & Surety Co., 406 U.S. 164, 170–71 (1972). The Trimble Court thought

this approach “somewhat of an analytical anomaly” and disapproved it. However,

the degree to which one could conform to the statute’s requirements and the reasonableness of those requirements in relation to a legitimate purpose are prominent in

Justice Powell’s reasoning in subsequent cases. Lalli v. Lalli, 439 U.S. 259, 266–74

(1978); Parham v. Hughes, 441 U.S. 347, 359 (1979) (concurring). See also Nyquist

v. Mauclet, 432 U.S. 1 (1977) (alienage); Mississippi Univ. for Women v. Hogan, 458

U.S. 718, 723 n.8 (1982) (sex); and compare id. at 736 (Justice Powell dissenting).

1919 Trimble v. Gordon, 430 U.S. 762, 770–73 (1977). The result is in effect a

balancing one, the means-ends relationship must be a substantial one in terms of

the advantages of the classification as compared to the harms of the classification

means. Justice Rehnquist’s dissent is especially critical of this approach. Id. at 777,

781–86. Also not interfering with orderly administration of estates is application of

Trimble in a probate proceeding ongoing at the time Trimble was decided; the fact

that the death had occurred prior to Trimble was irrelevant. Reed v. Campbell, 476

U.S. 852 (1986).

1920 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.

2178 AMENDMENT 14—RIGHTS GUARANTEED
including a notarized document in which the putative father, in consenting to his marriage, referred to him as “my son” and several

affidavits by persons who stated that the elder Lalli had openly and

frequently acknowledged that the younger Lalli was his child. In

the prevailing view, the single requirement of entry of a court order during the father’s lifetime declaring the child as his met the

“middle ground” requirement of Trimble; it was addressed closely

and precisely to the substantial state interest of seeing to the orderly disposition of property at death by establishing proof of paternity of illegitimate children and avoiding spurious claims against

intestate estates. To be sure, some illegitimates who were unquestionably established as children of the decreased would be disqualified because of failure of compliance, but individual fairness is not

the test. The test rather is whether the requirement is closely enough

related to the interests served to meet the standard of rationality

imposed. Also, although the state’s interest could no doubt have been

served by permitting other kinds of proof, 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.1921

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.” 1922

1921 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.

1922 Gomez v. Perez, 409 U.S. 535, 538 (1978) (emphasis added). 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

AMENDMENT 14—RIGHTS GUARANTEED 2179
Similarly, the Court struck down a federal Social Security provision that made eligible for benefits, because of an insured parent’s disability, all legitimate children as well as those illegitimate

children capable of inheriting personal property under state intestacy law and those children who were illegitimate only because of

a nonobvious defect in their parents’ marriage, regardless of whether

they were born after the onset of the disability, but that 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 illegitimates was necessary to avoid fraud.1923

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

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. Although 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.

1923 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).

2180 AMENDMENT 14—RIGHTS GUARANTEED
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.1924

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.” 1925 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.1926 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 1927 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

1924 Mathews v. Lucas, 427 U.S. 495 (1976). It can be seen that the only difference between Jiminez and Lucas is that in the former the Court viewed the benefits

as owing to all children and not just to dependents, while in the latter the benefits

were viewed as owing only to dependents and not to all children. But it is not clear

that in either case the purpose determined to underlie the provision of benefits was

compelled by either statutory language or legislative history. For a particularly good

illustration of the difference such a determination of purpose can make and the way

the majority and dissent in a 5-to-4 decision read the purpose differently, see Califano

v. Boles, 443 U.S. 282 (1979).

1925 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50–51 (1959).

1926 Article I, § 2, cl. 1 (House of Representatives); Seventeenth Amendment (Senators); Article II, § 1, cl. 2 (presidential electors); Article I, § 4, cl. 1 (times, places,

and manner of holding elections).

1927 Fourteenth Amendment, § 2. Justice Harlan argued that the inclusion of this

provision impliedly permitted the states to discriminate with only the prescribed penalty in consequence and that therefore the equal protection clause was wholly inapplicable to state election laws. Reynolds v. Sims, 377 U.S. 533, 589 (1964) (dissenting); Carrington v. Rash, 380 U.S. 89, 97 (1965) (dissenting); Oregon v. Mitchell, 400

U.S. 112, 152 (1970) (concurring and dissenting). Justice Brennan undertook a rebuttal of this position in Oregon v. Mitchell, 400 U.S. at 229, 250 (concurring and dissenting). But see Richardson v. Ramirez, 418 U.S. 24 (1974), where § 2 was relevant

in precluding an equal protection challenge.

AMENDMENT 14—RIGHTS GUARANTEED 2181
and write likewise has some relation to standards designed to promote intelligent use of the ballot.” 1928

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.” 1929 “Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative

government. . . . Statutes granting the franchise to residents on a

selective basis always pose the danger of denying some citizens any

effective voice in the governmental affairs which substantially affect their lives. Therefore, if a challenged state statute grants the

right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling

state interest.”

“And, for these reasons, the deference usually given to the judgment of legislators does not extend to decisions concerning which

resident citizens may participate in the election of legislators and

other public officials. . . . [W]hen we are reviewing statutes which

deny some residents the right to vote, the general presumption of

constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a ‘rational basis’ for the distinctions made are not applicable.” 1930 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.1931

1928 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51 (1959).

1929 Reynolds v. Sims, 377 U.S. 533, 561–62 (1964).

1930 Kramer v. Union Free School Dist., 395 U.S. 621, 626–28 (1969). See also

Hill v. Stone, 421 U.S. 289, 297 (1975). But cf. Holt Civic Club v. City of Tuscaloosa,

439 U.S. 60 (1978).

1931 Thus, in San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 34–35 nn.74 &

78 (1973), a major doctrinal effort to curb the “fundamental interest” side of the

“new” equal protection, the Court acknowledged that the right to vote did not come

within its prescription that rights to be deemed fundamental must be explicitly or

implicitly guaranteed in the Constitution. Nonetheless, citizens have a “constitution2182 AMENDMENT 14—RIGHTS GUARANTEED
Voter Qualifications.—States may require residency as a qualification to vote, but “durational residence laws . . . are unconstitutional unless the State can demonstrate that such laws are necessary to promote a compelling governmental interest.” 1932 The Court

applies “[t]his exacting test” because the right to vote is “a fundamental political right, . . . preservative of all rights,” and because

a “durational residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel.” 1933

The Court indicated that the states have “a legitimate and compelling interest” in preventing fraud by voters, but that “it is impossible to view durational residence requirements as necessary to achieve

that state interest.” 1934

However, a 50-day durational residence 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.1935

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

ally 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).

1932 Dunn v. Blumstein, 405 U.S. 330, 342 (1972) (internal quotation marks omitted, emphasis added by the Court) (striking down a Tennessee statute that imposed

a requirement of one year in the state and three months in the county). The Court

did not indicate what, if any, shorter duration it would permit, although it noted

that, in the Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U.S.C. § 1973aa–1,

“Congress outlawed State durational residence requirements for presidential and vicepresidential elections, and prohibited the States from closing registration more than

30 days before Congress prescribed a thirty-day period for purposes of voting in presidential elections.” Id. at 344. 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).

1933 405 U.S. at 336, 338. See also Purcell v. Gonzalez, 549 U.S. 1, 2 (2006) (per

curiam) (vacating an injunction against “requiring voters to present proof of citizenship when they register to vote and to present identification when they vote on election day,” but expressing no opinion on the constitutionality of the requirement).

1934 405 U.S. at 345. Other asserted state interests—knowledgeability of voters,

common interests, intelligent voting—were said either not to be served by the requirements or to be impermissible interests.

1935 Marston v. Lewis, 410 U.S. 679 (1973). Registration was by volunteer workers who made statistically significant errors requiring corrections by county recorders before certification. Primary elections were held in the fall, thus occupying the

time of the recorders, so that a backlog of registrations had to be processed before

the election. A period of 50 days rather than 30, the Court thought, was justifiable.

However, the same period was upheld for another state on the authority of Marston

in the absence of such justification, but it appeared that the 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.

AMENDMENT 14—RIGHTS GUARANTEED 2183
voting purposes.1936 A statute that 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 nonmilitary persons enjoyed of showing that he had established residence.1937 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.1938 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,1939 and denied states the right to restrict the vote

to property owners in elections on the issuance of revenue bonds 1940

or general obligation bonds.1941 By contrast, the Court upheld a statute that required voters to present a government-issued photo identification in order to vote, as the state had not “required voters to

pay a tax or a fee to obtain a new photo identification.” The Court

added that, although obtaining a government-issued photo identification is an “inconvenience” to voters, it “surely does not qualify as

a substantial burden.” 1942

The Court has also 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 valu1936 Evans v. Cornman, 398 U.S. 419 (1970).

1937 Carrington v. Rash, 380 U.S. 89 (1965).

1938 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).

1939 Kramer v. Union Free School Dist., 395 U.S. 621 (1969). The Court assumed without deciding that the franchise in some circumstances could be limited

to those “primarily interested” or “primarily affected” by the outcome, but found that

the restriction permitted some persons with no interest to vote and disqualified others with an interest. Justices Stewart, Black, and Harlan dissented. Id. at 594.

1940 Cipriano v. City of Houma, 395 U.S. 701 (1969). Justices Black, Harlan, and

Stewart concurred specially. Id. at 707.

1941 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.

1942 Crawford v. Marion County Election Board, 128 S. Ct. 1610, 1621 (2008)

(plurality). See Fourteenth Amendment, “Voting and Ballot Access,” infra.

2184 AMENDMENT 14—RIGHTS GUARANTEED
ation of land, comported with equal protection standards.1943 Adverting to the reservation in prior local governmental unit election cases 1944

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.1945

Also narrowly approached was the issue of the effect of the District’s activities, the Court focusing upon the assessments against

landowners as the sole means of paying expenses rather than additionally noting the impact upon lessees and non-landowning residents of such functions as flood control. The approach taken in this

case seems different in great degree from that in prior cases and

could in the future alter the results in other local government cases.

These cases were extended somewhat in Ball v. James,

1946 a 5-to-4

decision that 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 that stores and delivers water to 236,000 acres

of land in the state and subsidizes its water operations by selling

electricity to hundreds of thousands of consumers in a nearby metropolitan area. The entity’s board of directors was elected through

a system in which the eligibility to vote was as described above.

The Court thought the entity was a specialized and limited form to

which its general franchise rulings did not apply.1947

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

1943 Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 719 (1973). See also

Associated Enterprises v. Toltec Watershed Improv. Dist., 410 U.S. 743 (1973) (limitation of franchise to property owners in the creation and maintenance of district

upheld). Justices Douglas, Brennan, and Marshall dissented in both cases. Id. at

735, 745.

1944 410 U.S. at 727–28.

1945 410 U.S. at 730, 732. Thus, the Court posited reasons that might have moved

the legislature to adopt the exclusions.

1946 451 U.S. 355 (1981).

1947 The water district cases were distinguished in Quinn v. Millsap, 491 U.S.

95, 109 (1989), the Court holding that a “board of freeholders” appointed to recommend a reorganization of local government had a mandate “far more encompassing”

than land use issues, as its recommendations “affect[ ] all citizens . . . regardless of

land ownership.”

AMENDMENT 14—RIGHTS GUARANTEED 2185
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.1948 But a law that prohibited a person from

voting in the primary election of a political party if he had voted in

the primary election of any other party within the preceding 23 months

was subjected to strict scrutiny and was voided, because 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.1949 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.1950

It must not be forgotten, however, that it is only when a state

extends the franchise to some and denies it to others that a “right

to vote” arises and is protected by the Equal Protection Clause. If

a state chooses to fill an office by means other than through an election, neither the Equal Protection Clause nor any other constitutional provision prevents it from doing so. Thus, in Rodriguez v. Popular Democratic Party,

1951 the Court unanimously sustained a Puerto

Rico statute that 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

1948 Rosario v. Rockefeller, 410 U.S. 752 (1973). Justices Powell, Douglas, Brennan, and Marshall dissented. Id. at 763.

1949 Kusper v. Pontikes, 414 U.S. 51 (1973). Justices Blackmun and Rehnquist

dissented. Id. at 61, 65.

1950 Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). Although

independents were allowed to register in a party on the day before a primary, the

state’s justifications for “protect[ing] the integrity of the Party against the Party itself” were deemed insubstantial. Id. at 224.

1951 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).

2186 AMENDMENT 14—RIGHTS GUARANTEED
way.1952 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.1953

Access to the Ballot.—The Equal Protection Clause applies to

state specification of qualifications for elective and appointive office. Although one may “have no right” to be elected or appointed

to an office, all persons “do have a federal constitutional right to be

considered for public service without the burden of invidiously discriminatory disqualification. The State may not deny to some the

privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees.” 1954 In Bullock v. Carter,

1955 the Court used a somewhat modified form of the strict test in passing upon a filing fee system for

primary election candidates that imposed the cost of the election

wholly on the candidates and that 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.1956

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 genuine1952 McDonald v. Board of Election Comm’rs, 394 U.S. 802 (1969). But see Goosby

v. Osser, 409 U.S. 512 (1973) (McDonald does not preclude challenge to absolute

prohibition on voting).

1953 O’Brien v. Skinner, 414 U.S. 524 (1974). See American Party of Texas v. White,

415 U.S. 767, 794–95 (1974).

1954 Turner v. Fouche, 396 U.S. 346, 362–63 (1970) (voiding a property qualification for appointment to local school board). See also Chappelle v. Greater Baton Rouge

Airport Dist., 431 U.S. 159 (1977) (voiding a qualification for appointment as airport commissioner of ownership of real or personal property that is assessed for taxes

in the jurisdiction in which airport is located); Quinn v. Millsap, 491 U.S. 95 (1989)

(voiding property ownership requirement for appointment to board authorized to propose reorganization of local government). Cf. Snowden v. Hughes, 321 U.S. 1 (1944).

1955 405 U.S. 134, 142–44 (1972).

1956 405 U.S. at 144–49.

AMENDMENT 14—RIGHTS GUARANTEED 2187
ness 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.” 1957 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.1958

In Clements v. Fashing,

1959 the Court sustained two provisions

of state law, one that barred certain officeholders from seeking election to the legislature during the term of office for which they had

been elected or appointed, but that did not reach other officeholders whose terms of office expired with the legislators’ terms and did

not bar legislators from seeking other offices during their terms, and

the other that automatically terminated the terms of certain officeholders who announced for election to other offices, but that did not

apply to other officeholders who could run for another office while

continuing to serve. The Court was splintered in 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,

1960 a complex statutory structure that

had the effect of keeping off the ballot all but the candidates of the

1957 Lubin v. Panish, 415 U.S. 709, 716 (1974).

1958 Concurring, Justices Blackmun and Rehnquist suggested that a reasonable

alternative would be to permit indigents to seek write-in votes without paying a

filing fee, 415 U.S. at 722, but the Court indicated this would be inadequate. Id. at

719 n.5.

1959 457 U.S. 957 (1982). A plurality of four contended that save in two circumstances—ballot access classifications based on wealth and ballot access classifications imposing burdens on new or small political parties or independent candidates—

limitations on candidate access to the ballot merit only traditional rational basis

scrutiny, because candidacy is not a fundamental right. The plurality found both

classifications met the standard. Id. at 962–73 (Justices Rehnquist, Powell, O’Connor,

and Chief Justice Burger). Justice Stevens concurred, rejecting the plurality’s standard, but finding that inasmuch as the disparate treatment was based solely on the

state’s classification of the different offices involved, and not on the characteristics

of the persons who occupy them or seek them, the action did not violate the Equal

Protection Clause. Id. at 973. The dissent primarily focused on the First Amendment but asserted that the classifications failed even a rational basis test. Id. at

976 (Justices Brennan, White, Marshall, and Blackmun).

1960 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

2188 AMENDMENT 14—RIGHTS GUARANTEED
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.

1961 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, because the state placed

no barriers of any sort in the way of obtaining signatures and because write-in votes were also freely permitted.1962

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.1963 “[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.” 1964 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,

35, 41, and Justices Stewart and White and Chief Justice Warren dissented. Id. at

48, 61, 63.

1961 Moore v. Ogilvie, 394 U.S. 814 (1969) (overruling MacDougall v. Green, 335

U.S. 281 (1948)).

1962 Jenness v. Fortson, 403 U.S. 431 (1971).

1963 Storer v. Brown, 415 U.S. 724 (1974); American Party of Texas v. White,

415 U.S. 767 (1974); Illinois State Bd. of Elections v. Socialist Workers Party, 440

U.S. 173 (1979). See also 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).

1964 Storer v. Brown, 415 U.S. 724, 746 (1974).

AMENDMENT 14—RIGHTS GUARANTEED 2189
the interest which the State claims to be protecting, and the interest of those who are disadvantaged by the classification.’ ” 1965

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 totaled 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 excessive or impractical as to be in reality a mere device to always, or almost always,

exclude parties with significant support from the ballot,” but the

Court thought that one percent, or 22,000 signatures in 1972, “falls

within the outer boundaries of support the State may require.” 1966

Similarly, independent candidates can be required to obtain a certain number of signatures as a condition to obtain ballot space.1967

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.1968 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

1965 415 U.S. at 730 (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)).

1966 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).

1967 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.

1968 415 U.S. at 785–87.

2190 AMENDMENT 14—RIGHTS GUARANTEED
at which nominations for the general election are made.1969 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.1970 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.1971 Also invalidated was a

requirement that independent candidates for President and VicePresident file nominating petitions by March 20 in order to qualify

for the November ballot.1972

Apportionment and Districting.—Prior to 1962, attacks in federal courts on the drawing of boundaries for congressional 1973 and

legislative election districts or the apportionment of seats to previously existing units ran afoul of the “political question” doctrine.1974 Baker v. Carr,

1975 however, reinterpreted the doctrine to a

considerable degree and opened the federal courts to voter complaints founded on unequally populated voting districts. Wesberry

v. Sanders 1976 found that Article I, § 2, of the Constitution required that, in the election of Members of the House of Representatives, districts were to be made up of substantially equal numbers

1969 Storer v. Brown, 415 U.S. 724, 728–37 (1974). Dissenting, Justices Brennan, Douglas and Marshall thought the state interest could be adequately served by

a shorter time period than a year before the primary election, which meant in effect

17 months before the general election. Id. at 755.

1970 Munro v. Socialist Workers Party, 479 U.S. 189 (1986).

1971 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).

1972 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.

1973 This subject is also discussed under Article I, Section 2, Congressional Districting.

1974 See discussion, supra. Applicability of the doctrine to cases of this nature

was left unresolved in Smiley v. Holm, 285 U.S. 355 (1932), and Wood v. Broom, 287

U.S. 1 (1932), was supported by only a plurality in Colegrove v. Green, 328 U.S. 549

(1946), but became the position of the Court in subsequent cases. Cook v. Fortson,

329 U.S. 675 (1946); Colegrove v. Barrett, 330 U.S. 804 (1947); MacDougall v. Green,

335 U.S. 281 (1948); South v. Peters, 339 U.S. 276 (1950); Hartsfield v. Sloan, 357

U.S. 916 (1958).

1975 369 U.S. 186 (1962).

1976 376 U.S. 1 (1964). Striking down a county unit system of electing a governor, the Court, in an opinion by Justice Douglas, had already coined a variant 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).

AMENDMENT 14—RIGHTS GUARANTEED 2191
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.1977

“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.” 1978 What was required was that each state “make

an honest and good faith effort to construct districts, in both houses

of its legislature, as nearly of equal population as is practicable.

We realize that it is a practical impossibility to arrange legislative

districts so that each one has an identical number of residents, or

citizens, or voters. Mathematical exactness or precision is hardly a

workable constitutional requirement.” 1979

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 a 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 that exercised only administrative powers rather

than legislative powers, was not subject to the principle of the apportionment ruling.1980 Avery v. Midland County 1981 held that, when

1977 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. In Reynolds v. Sims, Justice Harlan dissented wholly, denying that the Equal

Protection Clause had any application at all to apportionment and districting and

contending that the decisions were actually the result of a “reformist” nonjudicial

attitude on the part of the Court. 377 U.S. at 589. Justices Stewart and Clark dissented in two and concurred in four cases on the basis of their view that the Equal

Protection Clause was satisfied by a plan that was rational and that did not systematically frustrate the majority will. 377 U.S. at 741, 744.

1978 Reynolds v. Sims, 377 U.S. 533, 568 (1964).

1979 377 U.S. at 577.

1980 Sailors v. Board of Education, 387 U.S. 105 (1967).

1981 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

2192 AMENDMENT 14—RIGHTS GUARANTEED
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,

1982 the Court

abandoned much of the limitation that 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 that triggers the application.1983

The second issue has been largely but not precisely resolved.

In Swann v. Adams,

1984 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 districting cases were disposed of on the basis of Swann,

1985 but, although the Court ruled

that no congressional districting could be approved without “a goodfaith effort to achieve precise mathematical equality” or the justification of “each variance, no matter how small,” 1986 it did not apply

discerning application and would not have applied the principle to the county council here. Id. at 495, 509.

1982 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.

1983 The Court observed that there might be instances “in which a State elects

certain functionaries whose duties are so far removed from normal governmental

activities and so disproportionately affect different groups that a popular election in

compliance with Reynolds, supra, might not be required . . . .” 397 U.S. 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).

1984 385 U.S. 440, 443–44 (1967). See also Kilgarlin v. Hill, 386 U.S. 120 (1967).

1985 Kirkpatrick v. Preisler, 385 U.S. 450 (1967); Duddleston v. Grills, 385 U.S.

455 (1967).

1986 Kirkpatrick v. Preisler, 394 U.S. 526, 530–31 (1969); Wells v. Rockefeller,

394 U.S. 542 (1969). The Court has continued to adhere to this strict standard for

congressional districting, voiding a plan in which the maximum deviation between

largest and smallest district was 0.7%, or 3,674 persons. Karcher v. Daggett, 462

U.S. 725 (1983) (rejecting assertion that deviations less than estimated census error

are necessarily permissible).

AMENDMENT 14—RIGHTS GUARANTEED 2193
this strict standard to state legislative redistricting.1987 And, in Abate

v. Mundt,

1988 the Court approved a plan for apportioning a county

governing body that 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 that might in other

circumstances invalidate a plan.1989 The total population deviation

allowed in Abate was 11.9%; the Court refused, however, to extend

Abate to approve a total deviation of 78% resulting from an apportionment plan providing for representation of each of New York City’s

five boroughs on the New York City Board of Estimate.1990

Nine years after Reynolds v. Sims, the Court reexamined the

population equality requirement of the apportionment cases. Relying upon language in prior decisions that distinguished state legislative apportionment from congressional districting as possibly justifying different standards of permissible deviations from equality,

the Court held that more flexibility is constitutionally permissible

with respect to the former than to the latter.1991 But it was in determining how much greater flexibility was permissible that the Court

1987 The Court relied on Swann in disapproving of only slightly smaller deviations (roughly 28% and 25%) in Whitcomb v. Chavis, 403 U.S. 124, 161–63 (1971).

In Connor v. Williams, 404 U.S. 549, 550 (1972), the Court said of plaintiffs’ reliance

on Preisler and Wells that “these decisions do not squarely control the instant appeal since they do not concern state legislative apportionment, but they do raise

substantial questions concerning the constitutionality of the District Court’s plan as

a design for permanent apportionment.”

1988 403 U.S. 182 (1971).

1989 In Evenwel v. Abbott, a case involving representation in the state legislature, the Court rejected the argument that the Equal Protection Clause prohibits

states from using total population in determining voting districts and instead requires the use of the voting population. 578 U.S. ___, No. 14–940, slip op. (2016).

The Court based its conclusion here, in part, on the debates over representation in

the U.S. House and Senate at the time of the Constitution’s framing, as well as

subsequent debates over the Fourteenth Amendment at the time of its ratification.

Id. at 8–12. The Court also noted prior decisions focusing on “equality of representation,” and not “voter equality,” id. at 16, and the settled practices of all fifty states

and “countless local jurisdictions” in apportioning representation based on total population. Id. at 18. It is important to note, however, that the Evenwel Court declined

to find that apportionment based on total population is constitutionally required,

and the Court has, in other cases, upheld the use of districts based on voting population. See Burns v. Richardson, 384 U.S. 73 (1966) (rejecting a challenge to Hawaii’s use of the registered-voter population).

1990 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 atlarge representation must be taken into account. Id. at 699–701.

1991 Mahan v. Howell, 410 U.S. 315, 320–25 (1973).

2194 AMENDMENT 14—RIGHTS GUARANTEED
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.1992 Second, just as the first case “demonstrates, population deviations among districts may be sufficiently

large to require justification but nonetheless be justifiable and legally sustainable. It is now time to recognize . . . that minor deviations from mathematical equality among state legislative districts

are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.” 1993 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 by enabling them to avoid overinvolvement 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 ac1992 410 U.S. at 325–30. The Court indicated that a 16.4% deviation “may well

approach tolerable limits.” Id. at 329. Dissenting, Justices Brennan, Douglas, and

Marshall would have voided the plan; additionally, they thought the deviation was

actually 23.6% and that the plan discriminated geographically against one section

of the state, an issue not addressed by the Court. In Chapman v. Meier, 420 U.S. 1,

21–26 (1975), holding that a 20% variation in a court-developed plan was not justified, the Court indicated that such a deviation in a legislatively-produced plan would

be quite difficult to justify. See also Summers v. Cenarrusa, 413 U.S. 906 (1973) (vacating and remanding for further consideration the approval of a 19.4% deviation).

But see Voinovich v. Quilter, 507 U.S. 146 (1993) (vacating and remanding for further consideration the rejection of a deviation in excess of 10% intended to preserve

political subdivision boundaries). In Brown v. Thomson, 462 U.S. 835 (1983), the Court

held that a consistent state policy assuring each county at least one representative

can justify substantial deviation from population equality when only the marginal

impact of representation for the state’s least populous county was challenged (the

effect on plaintiffs, voters in larger districts, was that they would elect 28 of 64 members rather than 28 of 63), but there was indication in Justice O’Connor’s concurring opinion that a broader-based challenge to the plan, which contained a 16% average deviation and an 89% maximum deviation, could have succeeded.

1993 Gaffney v. Cummings, 412 U.S. 735, 745 (1973). The maximum deviation

was 7.83%. The Court did not precisely indicate at what point a deviation had to be

justified, but it applied the de minimis standard in White v. Regester, 412 U.S. 755

(1973), in which the maximum deviation was 9.9%. “Very likely, larger differences

between districts would not be tolerable without justification . . . .” 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].”

AMENDMENT 14—RIGHTS GUARANTEED 2195
count.1994 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.1995

Subsequently, in its 2016 decision in Harris v. Arizona Independent Redistricting Commission, the Court reiterated the significance of the 10% threshold in challenges to state legislative voting

districts, observing that “attacks on deviations under 10% will succeed only rarely, in unusual cases.” 1996 Instead, challengers must

show that it is “more probable than not” that the deviation “reflects the predominance of illegitimate reapportionment factors rather

than . . . legitimate considerations.” 1997 The Court unanimously agreed

that the challengers in Harris had failed to meet this burden, as

the record supported the district court’s conclusion that the deviation here—which was 8.8%—reflected the redistricting commission’s efforts to achieve compliance with the Voting Rights Act, and

not to secure political advantage for the Democratic party.1998 In

particular, the Court noted that the difference in population between Democratic- and Republican-leaning districts may simply reflect the residential and voting patterns of minorities, and the redistricting commission’s efforts to maintain “ability-to-elect districts”

(i.e., districts favorable to the election of minority candidates).1999

In the Court’s view, there was no showing of “illegitimate factors”

here, unlike in certain earlier cases (e.g., the creation of districts

that seem to have no relation to keeping counties whole or preserving the cores of prior districts).2000 The Court further noted that its

decision in Shelby County v. Holder,

2001 which held unconstitutional a section of the Voting Rights Act relevant to this case, did

1994 Gaffney v. Cummings, 412 U.S. 735, 748 (1973). By contrast, the Court has

held that estimated margin of error for census statistics does not justify deviation

from population equality in congressional districting. Karcher v. Daggett, 462 U.S.

725 (1983).

1995 Chapman v. Meier, 420 U.S. 1, 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).

1996 578 U.S. ___, No. 14–232, slip op. at 5 (2016). See also id. (noting the “inherent difficulties” of measuring and comparing factors that may legitimately account for small deviations from strict mathematical equality).

1997 Id. at 1.

1998 See id. at 5–9.

1999 Id. at 9–10.

2000 Id. at 10.

2001 570 U.S. ___, No. 12–96, slip op. (2013).

2196 AMENDMENT 14—RIGHTS GUARANTEED
not mean that Arizona’s attempt to comply with the Act could not

have been a legitimate state interest, as Arizona created the plan

at issue in 2010, and Shelby County was not decided until 2013.2002

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.2003 Even if racial gerrymandering is

intended to benefit minority voting populations, it is subject to strict

scrutiny under the Equal Protection Clause if racial considerations

are the dominant and controlling rationale in drawing district lines.2004

Showing that a district’s “bizarre” shape departs from traditional

districting principles such as compactness, contiguity, and respect

for political subdivision lines may serve to reinforce such a claim,2005

although a plurality of the Justices would not preclude the creation of “reasonably compact” majority-minority districts in order

to remedy past discrimination or to comply with the requirements

of the Voting Rights Act of 1965.2006 On the other hand, the Court

appears to have more recently weakened a challenger’s ability to

establish equal protection claims by showing both a strong deference to a legislature’s articulation of legitimate political explanations for districting decisions, and by allowing for a strong correlation between race and political affiliation.2007

2002 See 578 U.S. ___, No. 14–232, slip op. at 10 (2016).

2003 Gomillion v. Lightfoot, 364 U.S. 339 (1960); Wright v. Rockefeller, 376 U.S.

52 (1964); Sims v. Baggett, 247 F. Supp. 96 (M.D. Ala. 1965) (three-judge court).

Hunt v. Cromartie, 526 U.S. 541 (1999).

2004 See Shaw v. Hunt, 517 U.S. 899, 904–05 (1996); Miller v. Johnson, 515 U.S.

900, 920 (1995). In determining whether racial criteria predominate in the drawing

of a district, the Court has noted that the determination must be made with respect

to a specific electoral district and not with respect to a state as an undifferentiated

whole. See Ala. Legislative Black Caucus v. Alabama, 575 U.S. ___, No. 13–895, slip

op. at 6 (2015).

2005 Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. Reno, 509 U.S. 630 (1993).

See also Shaw v. Hunt, 517 U.S. 899 (1996) (creating an unconventionally-shaped

majority-minority congressional district in one portion of state in order to alleviate

effect of fragmenting geographically compact minority population in another portion

of state does not remedy a violation of § 2 of Voting Rights Act, and is thus not a

compelling governmental interest).

2006 Bush v. Vera, 517 U.S. 952, 979 (1996) (opinion of Justice O’Connor, joined

by Chief Justice Rehnquist and Justice Kennedy) (also involving congressional districts).

2007 See Easley v. Cromartie, 532 U.S. 234, 242 (2001) (“Caution is especially

appropriate in this case, where the State has articulated a legitimate political explanation for its districting decision, and the voting population is one in which race

and political affiliation are highly correlated.”). Nonetheless, in considering a state’s

legitimate reasons for a particular redistricting decision, the Court has held that

legislative efforts to create districts of approximately equal population should not be

weighed against the use of race to determine whether race predominates, as the

AMENDMENT 14—RIGHTS GUARANTEED 2197
Partisan or “political” gerrymandering raises more difficult issues. Several lower courts ruled that the issue was beyond judicial

cognizance,2008 and the Supreme Court itself, upholding an apportionment plan frankly admitted to have been drawn with the intent to achieve a rough approximation of the statewide political

strengths of the two parties, recognized the goal as legitimate and

observed that, while the manipulation of apportionment and districting is not wholly immune from judicial scrutiny, “we have not ventured far or attempted the impossible task of extirpating politics

from what are the essentially political processes of the sovereign

States.” 2009

In 1986, however, in a decision of potentially major import reminiscent of Baker v. Carr, the Court in Davis v. Bandemer 2010 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 2.2011 Thus, although

courthouse doors were now ajar for claims of partisan gerrymandering, it was unclear what it would 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” 2012 to be “the basic aim of legislative

apportionment,” and because racial gerrymandering issues had been

“equal population” goal is a “background rule” that animates all redistricting decisions. See Ala. Legislative Black Caucus, slip op. at 17.

2008 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).

2009 Gaffney v. Cummings, 412 U.S. 735, 751, 754 (1973).

2010 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 three of the majority

Justices, who just two 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”).

2011 Only Justices Powell and Stevens thought the Indiana redistricting plan void;

Justice White, joined by Justices Brennan, Marshall, and Blackmun, thought the

record inadequate to demonstrate continuing discriminatory impact, and Justice

O’Connor, joined by Chief Justice Burger and by Justice Rehnquist, would have ruled

that partisan gerrymandering is nonjusticiable as constituting a political question

not susceptible to manageable judicial standards.

2012 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

2198 AMENDMENT 14—RIGHTS GUARANTEED
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.2013 Although

a majority of Justices agreed that discriminatory effect as well as

discriminatory intent must be shown, there was significant disagreement as to what constitutes discriminatory effect.

Justice White’s plurality opinion suggested that there need be

“evidence of continued frustration of the will of a majority of the

voters or effective denial to a minority of voters of a fair chance to

influence the political process.” 2014 Moreover, continued frustration

of the chance to influence the political process cannot 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.2015

In the following years, however, litigants seeking to apply Davis against alleged partisan gerrymandering were generally unsuccessful. Then, when the Supreme Court revisited the issue in 2004,

it all but closed the door on such challenges. In Vieth v. Jubelirer,2016

a four-Justice plurality would have overturned Davis v. Bandemer’s

holding that challenges to political gerrymandering are justiciable,

but five Justices disagreed. The plurality argued that partisan considerations are an intrinsic part of establishing districts,2017 that

no judicially discernable or manageable standards exist to evaluate

clear from its original context, however, that the phrase was coined with such broad

application in mind.

2013 The quotation is from the Baker v. Carr measure for existence of a political

question, 369 U.S. 186, 217 (1962).

2014 478 U.S. at 133. Joining in this part of the opinion were Justices Brennan,

Marshall, and Blackmun.

2015 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).

2016 541 U.S. 267 (2004).

2017 541 U.S. at 285–86.

AMENDMENT 14—RIGHTS GUARANTEED 2199
unlawful partisan gerrymandering,2018 and that the power to address the issue of political gerrymandering resides in Congress.2019

Of the five Justices who believed that challenges to political gerrymandering are justiciable, four dissented, but Justice Kennedy concurred with the four-Justice plurality’s holding, thereby upholding

Pennsylvania’s congressional redistricting plan against a political

gerrymandering challenge. Justice Kennedy agreed that the lack “of

any agreed upon model of fair and effective representation” or “substantive principles of fairness in districting” left the Court with “no

basis on which to define clear, manageable, and politically neutral

standards for measuring the particular burden a given partisan classification imposes on representational rights.” 2020 But, though he

concurred in the holding, Justice Kennedy held out hope that judicial relief from political gerrymandering may be possible “if some

limited and precise rationale were found” to evaluate partisan redistricting. Davis v. Bandemer was thus preserved.2021

In League of United Latin American Citizens v. Perry, a

widely splintered Supreme Court plurality largely upheld a

Texas congressional redistricting plan that the state legislature

had drawn mid-decade, seemingly with the sole purpose of

achieving a Republican congressional majority.2022 The plurality

did not revisit the justiciability question, but examined “whether

appellants’ claims offer the Court a manageable, reliable measure

of fairness for determining whether a partisan gerrymander violates the Constitution.” 2023 The plurality was “skeptical . . . of a

claim that seeks to invalidate a statute based on a legislature’s

unlawful motive but does so without reference to the content of

the legislation enacted.” For one thing, although “[t]he legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority, . . . partisan aims did not guide every line it drew.” 2024 Apart from that,

2018 541 U.S. at 281–90 .

2019 541 U.S. at 271 (noting that Article I, § 4 provides that Congress may alter

state laws regarding the manner of holding elections for Senators and Representatives).

2020 541 U.S. at 307–08 (Justice Kennedy, concurring).

2021 541 U.S. at 306 (Justice Kennedy, concurring). Although Justice Kennedy

admitted that no workable model had been proposed either to evaluate the burden

partisan districting imposed on representational rights or to confine judicial intervention once a violation has been established, he held out the possibility that such

a standard may emerge, based on either equal protection or First Amendment principles.

2022 548 U.S. 399, 417 (2006). The design of one congressional district was held

to violate the Voting Rights Act because it diluted the voting power of Latinos. Id.

at 423–443.

2023 548 U.S. at 414.

2024 548 U.S. at 418, 417.

2200 AMENDMENT 14—RIGHTS GUARANTEED
the “sole-motivation theory” fails to show what is necessary to

identify an unconstitutional act of partisan gerrymandering: “a

burden, as measured by a reliable standard, on the complainants’ representational rights.” 2025 Moreover, “[t]he sole-intent

standard . . . is no more compelling when it is linked to . . .

mid-decennial legislation. . . . [T]here is nothing inherently suspect about a legislature’s decision to replace a mid-decade a

court-ordered plan with one of its own. And even if there were,

the fact of mid-decade redistricting alone is no sure indication of

unlawful political gerrymanders.” 2026 The plurality also found

“that mid-decade redistricting for exclusively partisan purposes”

did not in this case “violate[ ] the one-person, one-vote requirement.” 2027 Because ordinary mid-decade districting plans do not

necessarily violate the one-person, one-vote requirement, the only

thing out of the ordinary with respect to the Texas plan was

that it was motivated solely by partisan considerations, and the

plurality had already rejected the sole-motivation theory.

2028

League of United Latin American Citizens v. Perry thus left earlier Court precedent essentially unchanged. Claims of unconstitutional partisan gerrymandering are justiciable, but a reliable

measure of what constitutes unconstitutional partisan gerrymandering remains to be found.

It had been thought that the use of multimember districts to

submerge racial, ethnic, and political minorities might be treated

differently,2029 but in Whitcomb v. Chavis 2030 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

2025 548 U.S. at 418.

2026 548 U.S. at 419.

2027 548 U.S. at 420–21.

2028 548 U.S. at 422.

2029 Fortson v. Dorsey, 379 U.S. 433, 439 (1965); Burns v. Richardson, 384 U.S.

73, 88–89 (1965); Kilgarlin v. Hill, 386 U.S. 120, 125 n.3 (1967).

2030 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.

AMENDMENT 14—RIGHTS GUARANTEED 2201
or on some other basis, so that the failure of that group to elect

anyone merely meant that alone or in combination with other groups

it simply lacked the strength to obtain enough votes, whether the

election be in single-member or in multimember districts. That fact

of life was not of constitutional dimension, whether the group was

composed of blacks, or Republicans or Democrats, or some other category of persons. Thus, the submerging argument was rejected, as

was the argument of a voter in another county that the Court should

require uniform single-member districting in populous counties because voters in counties that 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 2031 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 MexicanAmericans the opportunity to participate in the election process in

a reliable and meaningful manner.2032

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.

2033 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.2034 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 un2031 412 U.S. 755, 765–70 (1973).

2032 “To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation

by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators

of their choice.” 412 U.S. at 765–66.

2033 446 U.S. 55 (1980).

2034 446 U.S. at 65–68 (Justices Stewart, Powell, Rehnquist, and Chief Justice

Burger). On intent versus impact analysis, see discussion, supra. Justices Blackmun

and Stevens concurred on other grounds, id. at 80, 83, and Justices White, Brennan, and Marshall dissented. Id. at 94, 103. Justice White agreed that purposeful

discrimination must be found, id. at 101, while finding it to have been shown, Justice Blackmun assumed that intent was required, and Justices Stevens, Brennan,

and Marshall would not so hold.

2202 AMENDMENT 14—RIGHTS GUARANTEED
constitutional discrimination to be in fact indicia of intent; however, the plurality seemingly disregarded the totality of circumstances test used in Regester and evaluated instead whether each

factor alone was sufficient proof of intent.2035

Again switching course, the Court in Rogers v. Lodge 2036 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 that it held could combine to show a discriminatory motive,

and largely overturned the limitations that 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.2037 In Thornburg

v. Gingles,

2038 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, 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

2035 446 U.S. at 68–74. Four Justices rejected this view of the plurality, while

Justice Stevens also appeared to do so but followed a mode of analysis significantly

different from that of any other Justice.

2036 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.

2037 On the legislation, see “Congressional Definition of Fourteenth Amendment

Rights,” infra.

2038 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 179–80, Justices Powell and Stevens), and three Justices thought political gerrymandering claims to be nonjusticiable.

AMENDMENT 14—RIGHTS GUARANTEED 2203
cases,2039 although that power is bounded by the constitutional violations found, so that courts do not have carte blanche, and they

should ordinarily respect the structural decisions made by state legislatures and the state constitutions.2040

Counting and Weighing of Votes.—In Bush v. Gore,

2041 a case

of dramatic result but of perhaps limited significance for equal protection, the Supreme Court ended a ballot dispute that arose during the year 2000 presidential election. The Florida Supreme Court

had ordered a partial manual recount of the Florida vote for Presidential Electors, requiring that all ballots that contained a “clear

indication of the intent of the voter” be counted, but allowing the

relevant counties to determine what physical characteristics of a ballot would satisfy this test. The Court held that the Equal Protection Clause would be violated by allowing arbitrary and disparate

methods of discerning voter intent in the recounting of ballots. The

decision was surprising to many, as a lack of uniformity in voting

standards and procedures is inherent in the American system of decentralized voting administration. The Court, however, limited its

holding to “the present circumstances,” where “a state court with

the power to assure uniformity” fails to provide “minimal procedural safeguards.” 2042 Citing the “many complexities” of application of equal protection “in election processes generally,” the Court

distinguished the many situations where disparate treatment of votes

results from different standards being applied by different local jurisdictions.

In cases where votes are given more or less weight by operation of law, it is not the weighing of votes itself that may violate

the 14th Amendment, but the manner in which it is done. Gray v.

Sanders,

2043 for instance, struck down the Georgia county unit sys2039 E.g., Reynolds v. Sims, 377 U.S. 533, 586–87 (1964); Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 195–200 (1972); White v. Weiser, 412 U.S.

783, 794–95 (1973); Upham v. Seamon, 456 U.S. 37, 41–42 (1982). When courts draw

their own plans, the court is held to tighter standards than is a legislature and has

to observe smaller population deviations and use single-member districts more than

multi-member 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).

2040 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).

2041 531 U.S. 98 (2000).

2042 531 U.S. at 109.

2043 372 U.S. 368 (1963).

2204 AMENDMENT 14—RIGHTS GUARANTEED
tem under which each county was allocated either two, four, or six

votes in statewide elections and the candidate carrying the county

received those votes. Because 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 2044

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—and the provision at issue in this case was neither directed to nor affected any identifiable class.

The Right to Travel

The doctrine of the “right to travel” actually encompasses three

separate rights, of which two have been notable for the uncertainty

of their textual support. The first is the right of a citizen to move

freely between states, a right venerable for its longevity, but still

lacking a clear doctrinal basis.2045 The second, expressly addressed

by the first sentence of Article IV, provides a citizen of one state

who is temporarily visiting another state the “Privileges and Immunities” of a citizen of the latter state.2046 The third is the right of a

new arrival to a state, who establishes citizenship in that state, to

enjoy the same rights and benefits as other state citizens. This right

is most often invoked in challenges to durational residency requirements, which require that persons reside in a state for a specified

period of time before taking advantage of the benefits of that state’s

citizenship.

Durational Residency Requirements.—Challenges to durational

residency requirements have traditionally been made under the Equal

Protection Clause of the Fourteenth Amendment. In 1999, how2044 403 U.S. 1 (1971).

2045 Saenz v. Roe, 526 U.S. 489 (1999). “For the purposes of this case, we need

not identify the source of [the right to travel] in the text of the Constitution. The

right of ‘free ingress and regress to and from’ neighboring states which was expressly mentioned in the text of the Article of Confederation, may simply have been

‘conceived from the beginning to be a necessary concomitant of the stronger Union

the Constitution created.’ ” Id. at 501 (citations omitted).

2046 Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) (“without some provision . . .

removing from citizens of each State the disabilities of alienage in other States, and

giving them equality of privilege with citizens of those States, the Republic would

have constituted little more than a league of States; it would not have constituted

the Union which now exists.”).

AMENDMENT 14—RIGHTS GUARANTEED 2205
ever, the Court approved a doctrinal shift, so that state laws that

distinguished between their own citizens, based on how long they

had been in the state, would be evaluated instead under the Privileges or Immunities Clause of the Fourteenth Amendment.2047 The

Court did not, however, question the continuing efficacy of the earlier cases.

A durational residency requirement creates two classes of persons: those who have been within the state for the prescribed period and those who have not.2048 But persons who have moved recently, at least from state to state,2049 have exercised a right protected

by the Constitution, and the durational residency classification either deters the exercise of that right or penalizes those who have

exercised it.2050 Any such classification is invalid “unless shown to

be necessary to promote a compelling governmental interest.” 2051

The constitutional right to travel has long been recognized,2052 but

it is only relatively recently that the strict standard of equal protection review has been applied to nullify durational residency requirements.

Thus, in Shapiro v. Thompson,

2053 durational residency requirements conditioning eligibility for welfare assistance on one year’s

2047 Saenz v. Roe, 526 U.S. 489, 502–03 (1999).

2048 Dunn v. Blumstein, 405 U.S. 330, 334 (1972). Because 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.

2049 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).

2050 Shapiro v. Thompson, 394 U.S. 618, 629–31, 638 (1969); Dunn v. Blumstein,

405 U.S. 330, 338–42 (1972); Memorial Hospital v. Maricopa County, 415 U.S. 250

(1974); Jones v. Helms, 452 U.S. 412, 420–21 (1981). See also Oregon v. Mitchell,

400 U.S. 112, 236–39 (1970) (Justices Brennan, White, and Marshall), and id. at

285–92 (Justices Stewart and Blackmun and Chief Justice Burger).

2051 Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (emphasis by Court); Graham v. Richardson, 403 U.S. 365, 375–76 (1971).

2052 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).

2053 394 U.S. 618 (1969).

2206 AMENDMENT 14—RIGHTS GUARANTEED
residence in the state 2054 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 higherpaying ones in order to collect greater benefits, the Court said, the

purpose was impermissible.2055 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—then the requirements were rationally related to the purpose but they were not compelling enough to justify a classification

that infringed a fundamental interest.2056 In Dunn v. Blumstein,

2057

where the durational residency requirements denied the franchise

to newcomers, such administrative justifications were found constitutionally insufficient to justify the classification.2058 The Privileges

or Immunities Clause of the Fourteenth Amendment was the basis

for striking down a California law that limited welfare benefits for

California citizens who had resided in the state for less than a year

to the level of benefits that they would have received in the state

of their prior residence.2059

However, a state one-year durational residency requirement for

the initiation of a divorce proceeding was sustained in Sosna v.

Iowa.

2060 Although it is not clear what the precise basis of the ruling is, it appears that the Court found that the state’s interest in

2054 The durational residency provision established by Congress for the District

of Columbia was also voided. 394 U.S. at 641–42.

2055 394 U.S. at 627–33. Gaddis v. Wyman, 304 F. Supp. 717 (N.D.N.Y. 1969),

aff’d sub nom. Wyman v. Bowens, 397 U.S. 49 (1970), struck down a provision construed so as to bar only persons who came into the state solely to obtain welfare

assistance.

2056 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).

2057 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).

2058 For additional discussion of durational residence as a qualification to vote,

see Voter Qualifications, supra.

2059 Saenz v. Roe, 526 U.S. 489, 505 (1999).

2060 419 U.S. 393 (1975). Justices Marshall and Brennan dissented on the merits. Id. at 418.

AMENDMENT 14—RIGHTS GUARANTEED 2207
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.2061 Similarly, durational residency requirements for lower instate tuition at public colleges have been held constitutionally

justifiable, again, however, without a clear statement of reason.2062

More recently, the Court has attempted to clarify these cases by

distinguishing situations where a state citizen is likely to “consume” benefits within a state’s borders (such as the provision of welfare) from those where citizens of other states are likely to establish residency just long enough to acquire some portable benefit,

and then return to their original domicile to enjoy them (such as

obtaining a divorce decree or paying the in-state tuition rate for a

college education).2063

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 everincreasing 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.2064

2061 419 U.S. at 409. But the Court also indicated that the plaintiff was not absolutely barred from the state courts, but merely required to wait for access (which

was true in the prior cases as well and there held immaterial), and that possibly

the state interests in marriage and divorce were more exclusive and thus more immune from federal constitutional attack than were the matters at issue in the previous cases. The Court also did not indicate whether it was using strict or traditional scrutiny.

2062 Starns v. Malkerson, 326 F. Supp. 234 (D. Minn. 1970), aff’d per curiam,

401 U.S. 985 (1971). Cf. Vlandis v. Kline, 412 U.S. 441, 452 & n.9 (1973), and id. at

456, 464, 467 (dicta). In Memorial Hospital v. Maricopa County, 415 U.S. 250, 256

(1974), the Court, noting the results, stated that “some waiting periods . . . may not

be penalties” and thus would be valid.

2063 Saenz v. Roe, 526 U.S. at 505.

2064 Zobel v. Williams, 457 U.S. 55 (1982). Somewhat similar was the Court’s

invalidation on equal protection grounds of a veterans preference for state employment limited to persons who were state residents when they entered military service; four Justices also thought the preference penalized the right to travel. Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986).

2208 AMENDMENT 14—RIGHTS GUARANTEED
Still unresolved are issues such as durational residency requirements for occupational licenses and other purposes.2065 But this line

of cases does not apply to state residency requirements themselves,

as distinguished from durational provisions,2066 and the cases do

not inhibit the states when, having reasons for doing so, they bar

travel by certain persons.2067

Marriage and Familial Relations

In Zablocki v. Redhail,

2068 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 that “interfere directly and substantially” with the right.2069 The Court struck

down a statute that prohibited any resident under an obligation to

support minor children from marrying without a court order; such

order could only be obtained upon a showing that the support obligation had been and was being complied with and that the children were not and were not likely to become public charges. The

plaintiff was an indigent wishing to marry but prevented from doing so because he was not complying with a court order to pay support to an illegitimate child he had fathered, and because the child

was receiving public assistance. Applying “critical examination,” the

Court observed that the statutory prohibition could not be sustained unless it was justified by sufficiently important state interests and was closely tailored to effectuate only those interests.2070

Two interests were offered that the Court was willing to accept as

legitimate and substantial: requiring permission under the circum2065 La Tourette v. McMaster, 248 U.S. 465 (1919), upholding a two-year residence requirement to become an insurance broker, must be considered of questionable validity. Durational periods for admission to the practice of law or medicine or

other professions have evoked differing responses by lower courts.

2066 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).

2067 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).

2068 434 U.S. 374 (1978).

2069 Although the Court’s due process decisions have broadly defined a protected liberty interest in marriage and family, no previous case had held marriage

to be a fundamental right occasioning strict scrutiny. 434 U.S. at 396–397 (Justice

Powell concurring).

2070 434 U.S. at 388. Although the passage is not phrased in the usual compelling interest terms, the concurrence and the dissent so viewed it without evoking

disagreement from the Court. Id. at 396 (Justice Powell), 403 (Justice Stevens), 407

(Justice Rehnquist). Justices Powell and Stevens would have applied intermediate

scrutiny to void the statute, both for its effect on the ability to marry and for its

impact upon indigents. Id. at 400, 406 n.10.

AMENDMENT 14—RIGHTS GUARANTEED 2209
stances 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.2071 For example, in Califano v. Jobst,

2072 a unanimous Court

sustained a Social Security provision that revoked disabled dependents’ benefits of any person who married, except when the person

married someone who was also entitled to receive disabled dependents’ benefits. Plaintiff, a recipient of such benefits, married someone who was also disabled but not qualified for the benefits, and

his benefits were terminated. He sued, alleging that distinguishing

between classes of persons who married eligible persons and who

married ineligible persons infringed upon his right to marry. The

Court rejected the argument, finding that benefit entitlement was

not based upon need but rather upon actual dependency upon the

insured wage earner; marriage, Congress could have assumed, generally terminates the dependency upon a parent-wage earner. Therefore, it was permissible as an administrative convenience to make

marriage the terminating point but to make an exception when both

marriage partners were receiving benefits, as a means of lessening

hardship and recognizing that dependency was 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.” 2073

2071 434 U.S. at 386–87. Chief Justice Burger thought the interference here was

“intentional and substantial,” whereas the provision in Jobst was neither. Id. at 391

(concurring).

2072 434 U.S. 47 (1977).

2073 434 U.S. at 54. See also Mathews v. De Castro, 429 U.S. 181 (1976) (provision giving benefits to a married woman under 62 with dependent children in her

care whose husband retires or becomes disabled but denying them to a divorced woman

under 62 with dependents represents a rational judgment by Congress with respect

to likely dependency of married but not divorced women and does not deny equal

2210 AMENDMENT 14—RIGHTS GUARANTEED
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.2074

Sexual Orientation

In Romer v. Evans,

2075 the Supreme Court struck down a state

constitutional amendment that both overturned local ordinances prohibiting discrimination against homosexuals, lesbians or bisexuals,

and prohibited any state or local governmental action to either remedy discrimination or to grant preferences based on sexual orientation. The Court declined to follow the lead of the Supreme Court of

Colorado, which had held that the amendment infringed on gays’

and lesbians’ fundamental right to participate in the political process.2076 The Court also rejected the application of the heightened

standard reserved for suspect classes, and sought only to establish

whether the legislative classification had a rational relation to a legitimate end.

The Court found that the amendment failed even this restrained review. Animus against a class of persons was not considered by the Court as a legitimate goal of government: “[I]f the constitutional conception of ‘equal protection of the laws’ means anything,

it must at the very least mean that a bare . . . desire to harm a

politically unpopular group cannot constitute a legitimate governmental interest.” 2077 The Court then rejected arguments that the

amendment protected the freedom of association rights of landlords and employers, or that it would conserve resources in fighting discrimination against other groups. The Court found that the

scope of the law was unnecessarily broad to achieve these stated

purposes, and that no other legitimate rationale existed for such a

restriction.

In United States v. Windsor,

2078 the Court struck down Section

3 of the Defense of Marriage Act (DOMA), which provided that for

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).

2074 See, e.g., Quilloin v. Walcott, 434 U.S. 246 (1978) (state’s giving to father of

legitimate child who is divorced or separated from mother while denying to father

of illegitimate child a veto over the adoption of the child by another does not under

the circumstances deny equal protection. The circumstances were that the father

never exercised custody over the child or shouldered responsibility for his supervision, education, protection, or care, although he had made some support payments

and given him presents). Accord, Lehr v. Robertson, 463 U.S. 248 (1983).

2075 517 U.S. 620 (1996).

2076 Evans v. Romer, 854 P.2d 1270 (Colo. 1993).

2077 517 U.S. at 634, quoting Department of Agriculture v. Moreno, 413 U.S. 528,

534 (1973).

2078 570 U.S. ___, No. 12–307, slip op. (2013).

AMENDMENT 14—RIGHTS GUARANTEED 2211
purposes of any federal act, ruling, regulation, or interpretation by

an administrative agency, the word “spouse” would mean a person

of the opposite sex who is a husband or a wife.2079 In Windsor, the

petitioner had been married to her same-sex partner in Canada and

she lived in New York, where the marriage was recognized. After

her partner died, the petitioner sought to claim a federal estate tax

exemption for surviving spouses.2080 In examining the federal statute, the Court initially noted that, while “[b]y history and tradition

the definition and regulation of marriage . . . has been treated as

being within the authority and realm of the separate States,” 2081

Section 3 of DOMA took the “unusual” step of departing from the

“history and tradition of reliance on state law to define marriage”

in order to alter the reach of over 1,000 federal laws and limit the

scope of federal benefits.2082 Citing to Romer, the Court noted that

discrimination of “unusual character” warranted more careful scrutiny.2083

In approving of same-sex marriages, the State of New York was

conferring a “dignity and status of immense import,” 2084 and the

federal government, with Section 3 of DOMA, was aiming to impose “restrictions and disabilities” on and “injure the very class” New

York sought to protect.2085 In so doing, the Court concluded that

Section 3 of DOMA was motivated by improper animus or purpose

because the law’s avowed “purpose and practical” effect was to “impose a . . . stigma upon all who enter into same-sex marriages made

lawful” by the states.2086 Holding that “no legitimate purpose overcomes the purpose and effect to disparage and injure those whom

the State, by its marriage laws, sought to protect in personhood and

dignity,” 2087 the Court held that Section 3 of DOMA violates “basic

due process and equal protection principles applicable to the Federal Government.” 2088 In striking down Section 3, the Court did not

2079 Defense of Marriage Act, Pub. L. 104–199, § 3, 110 Stat. 2419, 1 U.S.C. § 7

(2006).

2080 Section 3 also provided that “marriage” would mean only a legal union between one man and one woman.

2081 Windsor, slip op. at 14–16.

2082 Id. at 18–19.

2083 Id. at 19 (citing Romer v. Evans, 517 U.S. 620, 633).

2084 Id. at 18.

2085 Id. at 19–20.

2086 Id. at 21.

2087 Id. at 25–26.

2088 Id. at 20. Because the case was decided under the Due Process Clause of

the Fifth Amendment, which comprehends both substantive due process and equal

protection principles (as incorporated through the Fourteenth Amendment), this statement leaves unclear precisely how each of these doctrines bears on the presented

issue.

2212 AMENDMENT 14—RIGHTS GUARANTEED
expressly set out what test the government must meet to justify

laws calling for differentiated treatment based on sexual orientation.

Two years after Windsor, the Court, in Obergefell v. Hodges, invalidated several state laws limiting the licensing and recognition

of marriage to two people of the opposite sex.2089 While the decision primarily rested on substantive due process grounds,2090 the

Court noted that the “right of same sex couples to marry” is “derived, too,” from the Fourteenth Amendment’s Equal Protection

Clause.2091 In so holding, the Court recognized a general “synergy”

between the Due Process Clause and the Equal Protection Clause,

noting that just as evolving societal norms inform the liberty rights

of same-sex couples, so too do “new insights and societal understandings” about homosexuality reveal “unjustified inequality” with respect to traditional concepts about the institution of marriage.2092

In this sense, the Court viewed marriage laws prohibiting the licensing and recognition of same-sex marriages as working a grave and

continuing harm to same-sex couples, serving to “disrespect and subordinate them.” 2093 As a result, the Court ruled that the Equal Protection Clause prevents states from excluding same-sex couples from

civil marriage on the same terms and conditions as opposite sex

couples.2094

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,2095 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

2089 See 576 U.S. ___, No. 14–556, slip op. at 2 (2015).

2090 Id. at 10–19.

2091 Id. at 19.

2092 Id. at 19–21.

2093 Id. at 22.

2094 Id. at 23. Interestingly, however, the Obergefell Court did not engage in any

traditional equal protection analysis in which a government’s classification is adjudged based on the nature of the classification and the relationship between the

classification and the underlying justifications for the government policy. Instead the

Obergefell Court concluded that state classifications distinguishing between oppositeand same-sex couples violated equal protection principles on their face and therefore were unconstitutional. Id. at 21–22; see also supra Equal Protection of the Laws:

Equal Protection: Judging Classifications by Law: The New Standards: Active Review.

2095 San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973).

AMENDMENT 14—RIGHTS GUARANTEED 2213
done. The cases begin with Griffin v. Illinois,

2096 surely one of the

most seminal cases in modern constitutional law. There, the state

conditioned full direct appellate review—review to which all convicted defendants were entitled—on the furnishing of a bill of exceptions or report of the trial proceedings, in the preparation of which

the stenographic transcript of the trial was usually essential. Only

indigent defendants sentenced to death were furnished free transcripts; all other convicted defendants had to pay a fee to obtain

them. “In criminal trials,” Justice Black wrote in the plurality opinion, “a State can no more discriminate on account of poverty than

on account of religion, race, or color.” Although 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 from 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.” 2097

The principle of Griffin was extended in Douglas v. California,

2098 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 marshaling 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.” 2099

2096 351 U.S. 12 (1956).

2097 351 U.S. at 17, 18, 19. Although Justice Black was not explicit, it seems

clear that the system was found to violate both the Due Process and 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.

2098 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 also dissented. Id. at 360.

2099 372 U.S. at 357–58.

2214 AMENDMENT 14—RIGHTS GUARANTEED
From the beginning, Justice Harlan opposed reliance on the Equal

Protection Clause at all, arguing that a due process analysis was

the proper criterion to follow. “It is said that a State cannot discriminate between the ‘rich’ and the ‘poor’ in its system of criminal appeals. That statement of course commands support, but it hardly

sheds light on the true character of the problem confronting us

here. . . . All that Illinois has done is to fail to alleviate the consequences of differences in economic circumstances that exist wholly

apart from any state action.” A fee system neutral on its face was

not a classification forbidden by the Equal Protection Clause. “[N]o

economic burden attendant upon the exercise of a privilege bears

equally upon all, and in other circumstances the resulting differentiation is not treated as an invidious classification by the State, even

though discrimination against ‘indigents’ by name would be unconstitutional.” 2100 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.” 2101

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 that 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 that denied due process.2102

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.” 2103

2100 Griffin v. Illinois, 351 U.S. 12, 34, 35 (1956).

2101 Douglas v. California, 372 U.S. 353, 361 (1963).

2102 372 U.S. at 363–67.

2103 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).

AMENDMENT 14—RIGHTS GUARANTEED 2215
Criminal Procedure.—Criminal appeals“ [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.” 2104 “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. . . .” 2105 No state

may condition the right to appeal 2106 or the right to file a petition

for habeas corpus 2107 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 excerpted 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.2108 This right may not be denied by drawing a felony-misdemeanor distinction or by limiting it to those cases

in which confinement is the penalty.2109 A defendant’s right to counsel is to be protected as well as the similar right of the defendant

with funds.2110 The right to counsel on appeal necessarily means

the right to effective assistance of counsel.2111

2104 Rinaldi v. Yeager, 384 U.S. 305, 310 (1966).

2105 Draper v. Washington, 372 U.S. 487, 496 (1963).

2106 Burns v. Ohio, 360 U.S. 252 (1959); Douglas v. Green, 363 U.S. 192 (1960).

2107 Smith v. Bennett, 365 U.S. 708 (1961).

2108 Griffin v. Illinois, 351 U.S. 12 (1956); Eskridge v. Washington Prison Bd.,

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).

2109 Williams v. Oklahoma City, 395 U.S. 458 (1969); Mayer v. City of Chicago,

404 U.S. 189 (1971).

2110 Douglas v. California, 372 U.S. 353 (1963); Swenson v. Bosler, 386 U.S. 258

(1967); Anders v. California, 386 U.S. 738 (1967); Entsminger v. Iowa, 386 U.S. 748

(1967). A rule requiring a court-appointed appellate counsel to file a brief explaining

reasons why he concludes that a client’s appeal is frivolous does not violate the client’s right to assistance of counsel on appeal. McCoy v. Court of Appeals, 486 U.S.

429 (1988). The right is violated if the court allows counsel to withdraw by merely

certifying that the appeal is “meritless” without also filing an Anders brief supporting the certification. Penson v. Ohio, 488 U.S. 75 (1988). But see Smith v. Robbins,

528 U.S. 259 (2000) (upholding California law providing that appellate counsel may

2216 AMENDMENT 14—RIGHTS GUARANTEED
But, deciding a point left unresolved in Douglas, the Court held

that neither the Due Process nor the Equal Protection Clause requires 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 does not require that, after an appeal

has been provided, the state must always provide counsel to indigents

at every stage. “Unfairness results only if indigents are singled out

by the State and denied meaningful access to that system because

of their poverty.” That essentially equal protection issue was decided against the defendant in the context of an appellate system

in which one appeal could be taken as of right to an intermediate

court, with counsel provided if necessary, and in which further appeals might be granted not primarily upon any conclusion about

the result below but upon considerations of significant importance.2112 Not even death row inmates have a constitutional right

to an attorney to prepare a petition for collateral relief in state

court.2113

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 2114 and it must make available certain minimal legal materials.2115

The Criminal Sentence.—A convicted defendant may not be

imprisoned solely because of his indigency. Williams v. Illinois 2116

held that it was a denial of equal protection for a state to extend

limit his or her role to filing a brief summarizing the case and record and requesting the court to examine record for non-frivolous issues). On the other hand, since

there is no constitutional right to counsel for indigent prisoners seeking postconviction collateral relief, there is no requirement that withdrawal be justified in an Anders

brief if a state has provided counsel for postconviction proceedings. Pennsylvania v.

Finley, 481 U.S. 551 (1987) (counsel advised the court that there were no arguable

bases for collateral relief).

2111 Evitts v. Lucey, 469 U.S. 387 (1985).

2112 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).

2113 Murray v. Giarratano, 492 U.S. 1 (1989) (upholding Virginia’s system under

which “unit attorneys” assigned to prisons are available for some advice prior to the

filing of a claim, and a personal attorney is assigned if an inmate succeeds in filing

a petition with at least one non-frivolous claim).

2114 Johnson v. Avery, 393 U.S. 483 (1969).

2115 Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817 (1977).

2116 399 U.S. 235 (1970).

AMENDMENT 14—RIGHTS GUARANTEED 2217
the term of imprisonment of a convicted defendant beyond the statutory maximum provided because he was unable to pay the fine that

was also levied upon conviction. And Tate v. Short 2117 held that, in

situations in which no term of confinement is prescribed for an offense but only a fine, the court may not jail persons who cannot

pay the fine, unless it is impossible to develop an alternative, such

as installment payments or fines scaled to ability to pay. Willful refusal to pay may, however, be punished by confinement.

Voting and Ballot Access.—Treatment of indigency in a civil

type of “fundamental interest” analysis came in Harper v. Virginia

Bd. of Elections,

2118 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.” 2119

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 2120 in which the setting of high filing

fees for certain offices was struck down under a standard that was

stricter than the traditional equal protection standard but apparently less strict than the compelling state interest standard. 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 because some serious candidates could not pay the fees whereas

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.

2117 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.

2118 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.

2119 383 U.S. at 668. The Court observed that “the right to vote is too precious,

too fundamental to be so burdened or conditioned.” Id. at 670.

2120 405 U.S. 134 (1972).

2218 AMENDMENT 14—RIGHTS GUARANTEED
Extending Bullock, the Court 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.2121

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.2122

In Crawford v. Marion County Election Board,

2123 however, a

Court plurality held that a state may require citizens to present a

government-issued photo identification in order to vote. Although

Justice Stevens’ plurality opinion acknowledged “the burden imposed on voters who cannot afford . . . a birth certificate” (but added

that it was “not possible to quantify . . . the magnitude of the burden on this narrow class of voters”), it noted that the state had not

“required voters to pay a tax or a fee to obtain a new photo identification,” and that “the photo-identification cards issued by Indiana’s BMV are also free.” 2124 Justice Stevens also noted that a burden on voting rights, “[h]owever slight . . . must be justified by relevant

and legitimate state interests ‘sufficiently weighty to justify the limitation,’ ” 2125 and he found three state interests that were sufficiently weighty: election modernization (i.e., complying with federal statutes that require or permit the use of state motor vehicle

driver’s license applications to serve various purposes connected with

voter registration), deterring and detecting voter fraud, and safeguarding voter confidence. Justice Stevens’ opinion, therefore, rejected a facial challenge to the statute,2126 finding that, even though

it was “fair to infer that partisan considerations may have played

a significant role in the decision to enact” the statute, the statute

was “supported by valid neutral justifications.” 2127 Justice Scalia,

in his concurring opinion, would not only have upheld the statute

on its face, but would have ruled out as-applied challenges as well,

on the ground that “[t]he Indiana photo-identification law is a gen2121 Lubin v. Panish, 415 U.S. 709 (1974). Note that the Court indicated that

Bullock was decided on the basis of restrained review. Id. at 715.

2122 Bearden v. Georgia, 461 U.S. 660 (1983).

2123 128 S. Ct. 1610 (2008). Justice Stevens’ plurality opinion was joined by Chief

Justice Roberts and Justice Kennedy. Justice Scalia wrote a concurring opinion that

was joined by Justices Thomas and Alito, and Justices Souter, Ginsberg, and Breyer

dissented.

2124 128 S. Ct. at 1622, 1621.

2125 128 S. Ct. at 1616.

2126 “A facial challenge must fail where the statute has a plainly legitimate sweep.”

128 S. Ct. at 1623 (internal quotation marks omitted).

2127 128 S. Ct. at 1624. “[A]ll of the Republicans in the [Indiana] General Assembly voted in favor of [the statute] and the Democrats were unanimous in opposing

it.” Id. at 1623.

AMENDMENT 14—RIGHTS GUARANTEED 2219
erally applicable, nondiscriminatory voting regulation,” and, “without proof of discriminatory intent, a generally applicable law with

disparate impact is not unconstitutional.” 2128 Justice Souter, in his

dissenting opinion, found the statute unconstitutional because “a State

may not burden the right to vote merely by invoking abstract interests, be they legitimate or even compelling, but must make a particular, factual showing that threats to its interests outweigh the

particular impediments it has imposed. . . . The Indiana Voter ID

Law is thus unconstitutional: the state interests fail to justify the

practical limitations placed on the right to vote, and the law imposes an unreasonable and irrelevant burden on voters who are poor

and old.” 2129

Access to Courts.—In Boddie v. Connecticut,

2130 Justice Harlan carried a majority of the Court with him in using a due process

analysis to evaluate the constitutionality of a state’s filing fees in

divorce actions that 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 that kept some persons from

using that avenue. Justice Harlan’s opinion averred that a facially

neutral law or policy that 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,

2131 the Court held that the imposition of filing fees that 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

2128 128 S. Ct. at 1625, 1626.

2129 128 S. Ct. 1627, 1643 (citations omitted).

2130 401 U.S. 371 (1971).

2131 409 U.S. 434 (1973).

2220 AMENDMENT 14—RIGHTS GUARANTEED
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.2132

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.2133

The continuing vitality of Griffin v. Illinois, however, is seen in

M.L.B. v. S.L.J.,

2134 where the Court considered whether a state

seeking to terminate the parental rights of an indigent must pay

for the preparation of the transcript required for pursuing an appeal. Unlike in Boddie, the state, Mississippi, had afforded the plaintiff a trial on the merits, and thus the “monopolization” of the avenues of relief alleged in Boddie was not at issue. As in Boddie,

however, the Court focused on the substantive due process implications of the state’s limiting “[c]hoices about marriage, family life,

and the upbringing of children,” 2135 while also referencing cases establishing a right of equal access to criminal appellate review. Noting that even a petty offender had a right to have the state pay for

2132 409 U.S. at 443–46. The equal protection argument was rejected by using

the traditional standard of review, bankruptcy legislation being placed in the area

of economics and social welfare, and the use of fees to create a self-sustaining bankruptcy system being considered to be a rational basis. Dissenting, Justice Stewart

argued that Boddie required a different result, denied that absolute preclusion of

alternatives was necessary, and would have evaluated the importance of an interest

asserted rather than providing that it need be fundamental. Id. at 451. Justice Marshall’s dissent was premised on an asserted constitutional right to be heard in court,

a constitutional right of access regardless of the interest involved. Id. at 458. Justices Douglas and Brennan concurred in Justice Stewart’s dissent, as indeed did Justice Marshall.

2133 Ortwein v. Schwab, 410 U.S. 656 (1973). The division was the same 5-to-4

that prevailed in Kras. See also Lindsey v. Normet, 405 U.S. 56 (1972). But cases

involving the Boddie principle do continue to arise. Little v. Streater, 452 U.S. 1

(1981) (in paternity suit that State required complainant to initiate, indigent defendant entitled to have State pay for essential blood grouping test); Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (recognizing general right of indigent

parent to appointed counsel when state seeks to terminate parental status, but using balancing test to determine that right was not present in this case).

2134 519 U.S. 102 (1996).

2135 519 U.S. at 106. See Boddie v. Connecticut, 401 U.S. 371 (1971).

AMENDMENT 14—RIGHTS GUARANTEED 2221
the transcript needed for an effective appeal,2136 and that the forced

dissolution of parental rights was “more substantial than mere loss

of money,” 2137 the Court ordered Mississippi to provide the plaintiff

the court records necessary to pursue her appeal.

Educational Opportunity.—Making even clearer its approach in de facto wealth classification cases, the Court in San Antonio School District v. Rodriguez 2138 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.2139

Important as the result of the case is, the doctrinal implications are far more important. The attempted denomination of wealth

as a suspect classification failed on two levels. First, the Court noted

that plaintiffs had not identified the “class of disadvantaged ‘poor’ ”

in such a manner as to further their argument. That is, the Court

found that the existence of a class of poor persons, however defined, did not correlate with property-tax-poor districts; neither as

an absolute nor as a relative consideration did it appear that taxpoor 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 un2136 Mayer v. Chicago, 404 U.S. 189 (1971).

2137 519 U.S. at 121 (quoting Santosky v. Kramer, 455 U.S. 745, 756 (1982)).

2138 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.

2139 411 U.S. at 44–55. Applying the rational justification test, Justice White would

have found that the system did not use means rationally related to the end sought

to be achieved. Id. at 63.

2222 AMENDMENT 14—RIGHTS GUARANTEED
able to pay for some desired benefit, and as a consequence, they

sustained an absolute deprivation of a meaningful opportunity to

enjoy that benefit.” 2140 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.2141

Rodriguez clearly promised judicial restraint in evaluating challenges to the provision of governmental benefits when the effect is

relatively different because of the wealth of some of the recipients

or potential recipients and when the results, what is obtained, vary

in relative degrees. Wealth or indigency is not a per se suspect classification but it must be related to some interest that is fundamental, and Rodriguez doctrinally imposed a considerable barrier to the

discovery or creation of additional fundamental interests. As the decisions reviewed earlier with respect to marriage and the family reveal, that barrier has not held entirely firm, but within a range of

interests, such as education,2142 the case remains strongly viable.

Relying on Rodriguez and distinguishing Plyler, the Court in Kadrmas

v. Dickinson Public Schools 2143 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 argu2140 411 U.S. at 20. But see id. at 70, 117–24 (Justices Marshall and Douglas

dissenting).

2141 411 U.S. at 29–39. But see id. at 62 (Justice Brennan dissenting), 70, 110–17

(Justices Marshall and Douglas dissenting).

2142 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.

2143 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.

AMENDMENT 14—RIGHTS GUARANTEED 2223
ments 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.2144

Abortion.—Rodriguez furnished the principal analytical basis

for the Court’s subsequent decision in Maher v. Roe,

2145 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, the Court held that the indigent are not a suspect

class.2146 Again, as in Rodriguez and in Kras, the Court 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.2147 Expansion of this area of the law of equal protection seems especially limited.

SECTION 2. Representatives shall be apportioned among the

several States according to their respective numbers, counting

the whole number of persons in each State, excluding Indians

not taxed. But when the right to vote at any election for the

choice of electors for President and Vice President of the United

States, Representatives in Congress, the Executive and Judicial

officers of a State, or the members of the Legislature thereof, is

denied to any of the male inhabitants of such State, being twentyone 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 pro2144 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.

2145 432 U.S. 464 (1977).

2146 432 U.S. at 470–71.

2147 432 U.S. at 471–74. See also Harris v. McRae, 448 U.S. 297, 322–23 (1980).

Total deprivation was the theme of Boddie and was the basis of concurrences by

Justices Stewart and Powell in Zablocki v. Redhail, 434 U.S. 374, 391, 396 (1978),

in that the State imposed a condition indigents could not meet and made no exception for them. The case also emphasized that Dandridge v. Williams, 397 U.S. 471

(1970), imposed a rational basis standard in equal protection challenges to social

welfare cases. But see Califano v. Goldfarb, 430 U.S. 199 (1977), where the majority

rejected the dissent’s argument that this should always be the same.

2224 AMENDMENT 14—RIGHTS GUARANTEED
portion 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,

African-Americans, who formerly counted as three-fifths of a person, would be fully counted in the apportionment of seats in the

House of Representatives, increasing as well the electoral vote, and

there appeared the prospect that the readmitted Southern states

would gain a political advantage in Congress when combined with

Democrats from the North. Because 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 African-Americans 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 that discriminated against

males in the franchise.2148

No serious effort was ever made in Congress to effectuate § 2,

and the only judicial attempt was rebuffed.2149 With subsequent constitutional amendments adopted and the use of federal coercive powers to enfranchise persons, the section is little more than an historical curiosity.2150

However, in Richardson v. Ramirez,

2151 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

2148 See generally J. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956).

2149 Saunders v. Wilkins, 152 F.2d 235 (4th Cir. 1945), cert. denied, 328 U.S.

870 (1946).

2150 The 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).

2151 418 U.S. 24 (1974). Justices Marshall, Douglas, and Brennan dissented. Id.

at 56, 86.

AMENDMENT 14—RIGHTS GUARANTEED 2225
rather that because of § 2 the Equal Protection Clause was simply

inapplicable.

SECTIONS 3 AND 4. No Person shall be a Senator or Representative in Congress, or elector of President and Vice President,

or hold any office, civil or military, under the United States, or

under any State, who, having previously taken an oath, as a

member of Congress, or as an officer of the United States, or as

a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United

States, shall have engaged in insurrection or rebellion against

the same, or given aid or comfort to the enemies thereof. But

congress may by a vote of two thirds of each House, remove such

disability.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions

and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor

any State shall assume or pay any debt or obligation incurred

in aid of insurrection or rebellion against the United States, or

any claim for the loss or emancipation of any slave; but all such

debts, obligations and claims shall be held illegal and void.

DISQUALIFICATION AND PUBLIC DEBT

The right to remove disabilities imposed by this section was exercised by Congress at different times on behalf of enumerated individuals.2152 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.” 2153 Twenty-six

2152 E.g., and notably, the Private Act of December 14, 1869, ch.1, 16 Stat. 607.

2153 Ch. 193, 17 Stat. 142.

2226 AMENDMENT 14—RIGHTS GUARANTEED
years later, Congress enacted that “the disability imposed by section 3 . . . incurred heretofore, is hereby removed.” 2154

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.2155

SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

ENFORCEMENT

Generally

In the aftermath of the Civil War, Congress, in addition to proposing to the states the Thirteenth, Fourteenth, and Fifteenth Amendments, enacted seven statutes designed in a variety of ways to implement the provisions of these Amendments.2156 Several of these laws

were general civil rights statutes that 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.2157 In the end, Reconstruction was aban2154 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).

2155 Perry v. United States, 294 U.S. 330, 354 (1935), in which the Court concluded that the Joint Resolution of June 5, 1933, insofar as it attempted to override

the gold-clause obligation in a Fourth Liberty Loan Gold Bond “went beyond the

congressional power.” On a Confederate bond problem, see Branch v. Haas, 16 F. 53

(C.C.M.D. Ala. 1883) (citing Hanauer v. Woodruff, 82 U.S. (15 Wall.) 439 (1873), and

Thorington v. Smith, 75 U.S. (8 Wall.) 1 (1869)). See also The Pietro Campanella, 73

F. Supp. 18 (D. Md. 1947).

2156 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

Kidnaping 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.

2157 See generally R. CARR, FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR A SWORD

(1947).

AMENDMENT 14—RIGHTS GUARANTEED 2227
doned and with rare exceptions no cases were brought under the

remaining statutes until fairly recently.2158 Beginning with the Civil

Rights Act of 1957, however, Congress generally acted pursuant to

its powers under the Commerce Clause 2159 until Supreme Court decisions indicated an expansive concept of congressional power under the Civil War amendments,2160 which culminated in broad provisions against private interference with civil rights in the 1968

legislation.2161 The story of these years is largely an account of the

“state action” doctrine in terms of its limitation on congressional

powers; 2162 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 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,2163 and to provide criminal 2164 and civil 2165 liability for

state officials and agents 2166 or persons associated with them 2167

2158 For 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).

2159 The 1957 and 1960 Acts primarily concerned voting; the public accommodations provisions of the 1964 Act and the housing provisions of the 1968 Act were

premised on the commerce power.

2160 United States v. Guest, 383 U.S. 745 (1966); Katzenbach v. Morgan, 384

U.S. 641 (1966). The development of congressional enforcement powers in these cases

was paralleled by a similar expansion of the enforcement powers of Congress with

regard to the Thirteenth Amendment, Jones v. Alfred H. Mayer Co., 392 U.S. 409

(1968). South Carolina v. Katzenbach, 383 U.S. 301 (1966).

2161 82 Stat. 73, 18 U.S.C. § 245.

2162 On the “state action” doctrine in the context of the direct application of § 1

of the Fourteenth Amendment, see discussion, supra.

2163 Section 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).

2164 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).

2165 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).

2166 Ex parte Virginia, 100 U.S. 339 (1880).

2167 United States v. Price, 383 U.S. 787 (1966).

2228 AMENDMENT 14—RIGHTS GUARANTEED
who violate protected rights. These statutory measures designed to

eliminate discrimination “under color of law” 2168 present no problems of constitutional foundation, although there may well be other

problems of application.2169 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 2170 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 2171 found this enactment to be beyond Congress’s power to enforce the Fourteenth Amendment. The

Court observed that § 1 prohibited only state action and did not reach

private conduct. Therefore, Congress’s power under § 5 to enforce

§ 1 by appropriate legislation was held to be similarly limited. “It

does not invest Congress with power to legislate upon subjects which

are within the domain of State legislation; but to provide modes of

relief against State legislation, or State action, of the kind referred

to. It does not authorize Congress to create a code of municipal law

for the regulation of private rights; but to provide modes of redress

against the operation of State laws, and the action of State officers

executive or judicial, when these are subversive of the fundamental rights specified in the amendment.” 2172 The holding in this case

had already been preceded by United States v. Cruikshank 2173 and

by United States v. Harris 2174 in which the Federal Government

had prosecuted individuals for killing and injuring AfricanAmericans. The Amendment did not increase the power of the Fed2168 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).

2169 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).

2170 18 Stat. 335, §§ 1, 2.

2171 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).

2172 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 that satisfied the state action requirement in any event. Id.

at 46–48, 56–57.

2173 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.

2174 106 U.S. 629 (1883). The case held unconstitutional a provision of § 2 of the

1871 Act, ch. 22, 17 Stat. 13.

AMENDMENT 14—RIGHTS GUARANTEED 2229
eral Government vis-a-vis individuals, the Court held, only with regard to the states themselves.2175

Cruikshank did, however, recognize a small category of federal

rights that Congress could protect against private deprivation, rights

that the Court viewed as deriving particularly from one’s status as

a citizen of the United States and that Congress had a general police power to protect.2176 These rights included the right to vote in

federal elections, general and primary,2177 the right to federal protection while in the custody of federal officers,2178 and the right to

inform federal officials of violations of federal law.2179 The right of

interstate travel is a basic right derived from the Federal Constitution, which Congress may protect.2180 In United States v. Williams,

2181 in the context of state action, the Court divided four-tofour over whether the predecessor of 18 U.S.C. § 241 in its reference

to a “right or privilege secured . . . by the Constitution or laws of

the United States” encompassed rights guaranteed by the Fourteenth Amendment, or was restricted to those rights “which Congress can beyond doubt constitutionally secure against interference

by private individuals.” This issue was again reached in United States

v. Price 2182 and United States v. Guest,

2183 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.

Because the Court found that both Price and Guest concerned

sufficient state action, it did not then have to reach the question of

§ 241‘s constitutionality when applied to private action that interfered with rights not the subject of a general police power. But Justice Brennan, responding to what he apparently intepreted as language in the Court’s opinion construing Congress’s power under § 5

of the Fourteenth Amendment to be limited by the state action re2175 See also Baldwin v. Franks, 120 U.S. 678 (1887); Hodges v. United States,

203 U.S. 1 (1906); United States v. Wheeler, 254 U.S. 281 (1920). Under the Fifteenth Amendment, see James v. Bowman, 190 U.S. 127 (1903).

2176 United States v. Cruikshank, 92 U.S. 542, 552–53, 556 (1876). The rights

that 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.

2177 Ex parte Yarbrough , 110 U.S. 651 (1884); United States v. Classic, 313 U.S.

299 (1941).

2178 Logan v. United States, 144 U.S. 263 (1892).

2179 In re Quarles and Butler, 158 U.S. 532 (1895). See also United States v.

Waddell, 112 U.S. 76 (1884) (right to homestead).

2180 United States v. Guest, 383 U.S. 745 (1966); Griffin v. Breckenridge, 403

U.S. 88 (1971).

2181 341 U.S. 70 (1951).

2182 383 U.S. 787 (1966) (due process clause).

2183 383 U.S. 745 (1966) (Equal Protection Clause).

2230 AMENDMENT 14—RIGHTS GUARANTEED
quirement, appended a lengthy statement, which a majority of the

Justices joined, arguing that Congress’s power was broader.2184 “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.” 2185 The Justice throughout

the opinion refers to “Fourteenth Amendment rights,” by which he

meant rights that, in the words of 18 U.S.C. § 241, are “secured

. . . by the Constitution,” i.e., by the Fourteenth Amendment through

prohibitory words addressed only to governmental officers. Thus, the

Equal Protection Clause commands that all “public facilities owned

or operated by or on behalf of the State,” be available equally to all

persons; that access is a right granted by the Constitution, and § 5

is viewed “as a positive grant of legislative power, authorizing Congress to exercise its discretion in fashioning remedies to achieve civil

and political equality for all citizens.” Within this discretion is the

“power to determine that in order adequately to protect the right

to equal utilization of state facilities, it is also appropriate to punish other individuals” who would deny such access.2186

The Court, however, ultimately rejected this expansion of the

powers of Congress in United States v. Morrison.

2187 In Morrison,

the Court invalidated a provision of the Violence Against Women

Act 2188 that established a federal civil remedy for victims of gendermotivated violence. The case involved a university student who brought

2184 Justice Brennan’s opinion, 383 U.S. at 774, was joined by Chief Justice Warren and Justice Douglas. His statement that “[a] majority of the members of the

Court expresses the view today that § 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights,

whether or not state officers or others acting under the color of state law are implicated in the conspiracy,” id. at 782 (emphasis by the Justice), was based upon the

language of Justice Clark, joined by Justices Black and Fortas, id. at 761, that, because Justice Brennan had 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’s power under § 5. Id. at 755.

2185 383 U.S. at 782.

2186 383 U.S. at 777–79, 784.

2187 529 U.S. 598 (2000).

2188 Pub. L. 103–322, § 40302, 108 Stat. 1941, 42 U.S.C. § 13981.

AMENDMENT 14—RIGHTS GUARANTEED 2231
a civil action against other students who allegedly raped her. The

argument was made that there was a pervasive bias against victims of gender-motivated violence in state justice systems, and that

the federal remedy would offset and deter this bias. The Court first

reaffirmed the state action requirement for legislation passed under the Fourteenth Amendment,2189 dismissing the dicta in Guest,

and reaffirming the precedents of the Civil Rights Cases and United

States v. Harris. The Court also rejected the assertion that the legislation was “corrective” of bias in the courts, as the suits are not

directed at the state or any state actor, but rather at the individuals committing the criminal acts.2190

Congressional Definition of Fourteenth Amendment Rights

In the Civil Rights Cases,

2191 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

that § 1 forbids the states to adopt. The Court was quite clear that,

under its responsibilities of judicial review, it was the body that would

determine that a state law was impermissible and that a federal

2189 529 U.S. at 621 (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948), for the

proposition that the Amendment “erects no shield against merely private conduct,

however discriminatory or wrongful”).

2190 This holding may have broader significance for federal civil rights law. For

instance, 42 U.S.C. § 1985(3) (a civil statute paralleling the criminal statute held

unconstitutional in United States v. Harris) lacks a “color of law” requirement. Although the requirement was read into it in Collins v. Hardyman, 341 U.S. 651 (1951),

to avoid constitutional problems, it was read out again in Griffin v. Breckenridge,

403 U.S. 88, 97 (1971) (although it might be “difficult to conceive of what might

constitute a deprivation of the equal protection of the laws by private persons . . .

there is nothing inherent in the phrase that requires the action working the deprivation to come from the State”). What the unanimous Court held in Griffin was that

an “intent to deprive of equal protection, or equal privileges and immunities, means

that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Id. at 102. As so construed, the

statute was held constitutional as applied in the complaint before the Court on the

basis of the Thirteenth Amendment and the right to travel; there was no necessity

therefore, to consider Congress’s powers under § 5 of the 14th Amendment. Id. at

107.

The lower courts have been quite divided with respect to what constitutes a

non-racial, class-based animus, and what constitutional protections must be threatened before a private conspiracy can be reached under § 1985(3). See, e.g., Action v.

Gannon, 450 F.2d 1227 (8th Cir. 1971); Dombrowski v. Dowling, 459 F.2d 190 (7th

Cir. 1972); Great American Fed. S. & L. Ass’n v. Novotny, 584 F.2d 1235 (3d Cir.

1978) (en banc), rev’d, 442 U.S. 366 (1979); Scott v. Moore, 680 F.2d 979 (5th Cir.

1982) (en banc). The Court’s decision in Morrison, however, appears to preclude the

use of § 1985(3) in relation to Fourteenth Amendment rights absent some state action.

2191 109 U.S. 3, 13–14 (1883).

2232 AMENDMENT 14—RIGHTS GUARANTEED
law passed pursuant to § 5 was necessary and proper to enforce § 1.2192

But, in United States v. Guest,

2193 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,

2194 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 2195 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.” 2196 Because the Court had previously upheld an English literacy requirement under equal protection challenge,2197 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 that might have led Congress to its conclusion; because Congress “brought a specially informed legislative

competence” to an appraisal of voting requirements, “it was Congress’s prerogative to weigh” the considerations and the Court would

sustain the conclusion if “we perceive a basis upon which Congress

might predicate a judgment” that the requirements constituted invidious discrimination.2198

2192 Cf. Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).

2193 383 U.S. 745, 783 and n.7 (1966) (concurring and dissenting).

2194 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.

2195 79 Stat. 439, 42 U.S.C. § 1973b(e).

2196 384 U.S. at 648.

2197 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959).

2198 Katzenbach v. Morgan, 384 U.S. 641, 653–56 (1966).

AMENDMENT 14—RIGHTS GUARANTEED 2233
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.” 2199 Justice Brennan rejected this reasoning: “We emphasize that Congress’s 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.” 2200

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; 2201 on the other hand, it enacted provisions of law purporting

to overrule the Court’s expansion of the self-incrimination and rightto-counsel clauses of the Bill of Rights, expressly invoking Morgan.

2202

Congress’s power under Morgan returned to the Court’s consideration when several states challenged congressional legislation 2203 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

that many observers had previously seen.2204 Four Justices accepted Morgan in full,2205 while one Justice rejected it totally 2206

and another would have limited it to racial cases.2207 The other three

Justices seemingly restricted Morgan to its alternate rationale in

passing on the age reduction provision but the manner in which

2199 384 U.S. at 668. Justice Stewart joined this dissent.

2200 384 U.S. at 651 n.10. Justice O’Connor for the Court quoted and reiterated

Justice Brennan’s language in Mississippi Univ. for Women v. Hogan, 458 U.S. 718,

731–33 (1982).

2201 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.

2202 Title 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

that 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.

2203 Titles II and III of the Voting Rights Act Amendments of 1970, 84 Stat. 316,

42 U.S.C. §§ 1973aa–1, 1973bb.

2204 Oregon v. Mitchell, 400 U.S. 112 (1970).

2205 400 U.S. at 229, 278–81 (Justices Brennan, White, and Marshall), id. at 135,

141–44 (Justice Douglas).

2206 400 U.S. at 152, 204–09 (Justice Harlan).

2207 400 U.S. at 119, 126–31 (Justice Black).

2234 AMENDMENT 14—RIGHTS GUARANTEED
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.2208

More recent decisions read broadly Congress’s power to make

determinations that appear to be substantive decisions with respect to constitutional violations.2209 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.2210 Moreover, movements have been initiated in

Congress by opponents of certain of the Court’s decisions, notably

the abortion rulings, to use § 5 powers to curtail the rights the Court

has derived from the Due Process Clause and other provisions of

the Constitution.2211

City of Boerne v. Flores,

2212 however, illustrates that the Court

will not always defer to Congress’s determination as to what legislation is appropriate to “enforce” the provisions of the Fourteenth

Amendment. In Flores, the Court held that the Religious Freedom

2208 The age reduction provision could be sustained “only if Congress has the

power not only to provide the means of eradicating situations that amount to a violation of the Equal Protection Clause, but also to determine as a matter of substantive constitutional law what situations fall within the ambit of the clause, and what

state interests are ‘compelling.’ ” 400 U.S. at 296 (Justices Stewart and Blackmun

and Chief Justice Burger). In their view, Congress did not have that power and Morgan did not confer it. But in voting to uphold the residency and absentee provision,

the Justices concluded that “Congress could rationally conclude that the imposition

of durational residency requirements unreasonably burdens and sanctions the 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.

2209 See discussion of City of Rome v. United States, 446 U.S. 156, 173–83 (1980),

under the Fifteenth Amendment, infra. See also Fullilove v. Klutznick, 448 U.S. 448,

476–78 (1980) (plurality opinion by Chief Justice Burger), and id. at 500–02 (Justice Powell concurring).

2210 The 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, thereby avoiding a possible constitutional conflict.

2211 See The Human Life Bill: Hearings Before the Senate Judiciary Subcommittee on Separation of Powers, 97th Congress, lst Sess. (1981). An elaborate constitutional analysis of the bill appears in Estreicher, Congressional Power and Constitutional Rights: Reflections on Proposed ‘Human Life’ Legislation, 68 VA. L. REV. 333

(1982).

2212 521 U.S. 507 (1997).

AMENDMENT 14—RIGHTS GUARANTEED 2235
Restoration Act,2213 which expressly overturned the Court’s narrowing of religious protections under Employment Division v. Smith,

2214

exceeded congressional power under § 5 of the Fourteenth Amendment. Although the Court allowed that Congress’s power to legislate to deter or remedy constitutional violations may include prohibitions on conduct that is not itself unconstitutional, the Court also

held that there must be “a congruence and proportionality” between the means adopted and the injury to be remedied.2215 Unlike

the pervasive suppression of the African-American vote in the South

that led to the passage of the Voting Rights Act, there was no similar history of religious persecution constituting an “egregious predicate” for the far-reaching provision of the Religious Freedom Restoration Act. Also, unlike the Voting Rights Act, the Religious Freedom

Restoration Act contained no geographic restrictions or termination

dates.2216

A reinvigorated Eleventh Amendment jurisprudence has led to

a spate of decisions applying the principles the Court set forth in

Boerne, as litigants precluded from arguing that a state’s sovereign

immunity has been abrogated under Article I congressional powers 2217 seek alternative legislative authority in § 5. For instance,

in Florida Prepaid Postsecondary Educ. Expense Board v. College

Savings Bank,

2218 a bank that had patented a financial method designed to guarantee investors sufficient funds to cover the costs of

college tuition sued the State of Florida for administering a similar

program, arguing that the state’s sovereign immunity had been abrogated by Congress in exercise of its Fourteenth Amendment enforcement power. The Court, however, held that application of the

federal patent law to the states was not properly tailored to remedy or prevent due process violations. The Court noted that Congress had identified no pattern of patent infringement by the states,

nor a systematic denial of state remedy for such violations such as

would constitute a deprivation of property without due process.2219

2213 Pub. L. 103–141, 107 Stat. 1488, 42 U.S.C. §§ 2000bb et seq.

2214 494 U.S. 872 (1990).

2215 521 U.S. at 533.

2216 521 U.S. at 532–33. The Court found that the Religious Freedom Restoration Act was “so far out of proportion to a supposed remedial or preventive object

that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Id.

2217 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (Article I powers

may not be used to abrogate a state’s Eleventh Amendment immunity, but Fitzpatrick

v. Bitzer, 427 U.S. 445 (1976), holding that Congress may abrogate Eleventh Amendment immunity in exercise of Fourteenth Amendment enforcement power, remains

good law). See discussion pp. 1533–37.

2218 527 U.S. 627 (1999).

2219 527 U.S. at 639–46. See also College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., , 527 U.S. 666 (1999) (Trademark Remedy Clarifica2236 AMENDMENT 14—RIGHTS GUARANTEED
A similar result was reached regarding the application of the

Age Discrimination in Employment Act to state agencies in Kimel

v. Florida Bd. of Regents.

2220 In determining that the Act did not

meet the “congruence and proportionality” test, the Court focused

not just on whether state agencies had engaged in age discrimination, but on whether states had engaged in unconstitutional age discrimination. This was a particularly difficult test to meet, as the

Court has generally rejected constitutional challenges to age discrimination by states, finding that there is a rational basis for states

to use age as a proxy for other qualities, abilities and characteristics.2221 Noting the lack of a sufficient legislative record establishing broad and unconstitutional state discrimination based on age,

the Court found that the ADEA, as applied to the states, was “so

out of proportion to a supposed remedial or preventive object that

it cannot be understood as responsive to or designed to prevent unconstitutional behavior.” 2222

Despite what was considered by many to be a better developed

legislative record, the Court in Board of Trustees of Univ. of Ala. v.

Garrett 2223 also rejected the recovery of money damages against states,

this time under of the Americans with Disabilities Act of 1990

(ADA).2224 Title I of the ADA prohibits employers, including states,

from “discriminating against a qualified individual with a disability” 2225 and requires employers to “make reasonable accommodations [for] . . . physical or mental limitations . . . . unless [to do

so] . . . would impose an undue hardship on the . . . business.” 2226

Although the Court had previously overturned discriminatory legislative classifications based on disability in City of Cleburne v. Cleburne

Living Center,

2227 the Court had held that determinations of when

states had violated the Equal Protection Clause in such cases were

to be made under the relatively deferential standard of rational bation Act amendment to Lanham Act subjecting states to suits for false advertising is

not a valid exercise of Fourteenth Amendment power; neither the right to be free

from a business competitor’s false advertising nor a more generalized right to be

secure in one’s business interests qualifies as a “property” right protected by the

Due Process Clause).

2220 528 U.S. 62 (2000). Again, the issue of the Congress’s power under § 5 of

the Fourteenth Amendment arose because sovereign immunity prevents private actions against states from being authorized under Article I powers such as the commerce clause.

2221 See, e.g., Gregory v. Ashcroft, 501 U.S. 452 (1991) (applying rational basis

test to uphold mandatory retirement age of 70 for state judges).

2222 528 U.S. at 86, quoting City of Boerne, 521 U.S. at 532.

2223 531 U.S. 356 (2001).

2224 42 U.S.C. §§ 12111–12117.

2225 42 U.S.C. § 12112(a).

2226 42 U.S.C. § 12112(b)(5)(A).

2227 473 U.S. 432 (1985).

AMENDMENT 14—RIGHTS GUARANTEED 2237
sis review. Thus, failure of an employer to provide the kind “reasonable accommodations” required under the ADA would not generally

rise to the level of a violation of the Fourteenth Amendment, and

instances of such failures did not qualify as a “history and pattern

of unconstitutional employment discrimination.” 2228 Thus, according the Court, not only did the legislative history developed by the

Congress not establish a pattern of unconstitutional discrimination

against the disabled by states,2229 but the requirements of the ADA

would be out of proportion to the alleged offenses.

The Court’s more recent decisions in this area, however, seem

to de-emphasize the need for a substantial legislative record when

the class being discriminated against is protected by heightened scrutiny of the government’s action. In Nevada Department of Human

Resources v. Hibbs,

2230 the Court considered the recovery of monetary damages against states under the Family and Medical Leave

Act. This Act provides, among other things, that both male and female employees may take up to twelve weeks of unpaid “family care”

leave to care for a close relative with a serious health condition.

Noting that § 5 could be used to justify prophylactic legislation, the

Court accepted the argument that the Act was intended to prevent

gender-based discrimination in the workplace tracing to the historic stereotype that women are the primary caregivers. Congress

had documented historical instances of discrimination against women

by state governments, and had found that women were provided

maternity leave more often than were men.

Although there was a relative absence of proof that states were

still engaged in wholesale gender discrimination in employment, the

Court distinguished Garrett and Kimel, which had held Congress

to a high standard for justifying legislation attempting to remedy

classifications subject only to rational basis review. “Because the standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than our rational basis test . . .

it was easier for Congress to show a pattern of state constitutional

violations.” 2231 Consequently, the Court upheld an across-theboard, routine employment benefit for all eligible employees as a

2228 531 U.S. at 368.

2229 As Justice Breyer pointed out in the dissent, however, the Court seemed

determined to accord Congress a degree of deference more commensurate with review of an agency action, discounting portions of the legislative history as based on

secondary source materials, unsupported by evidence and not relevant to the inquiry at hand.

2230 538 U.S. 721 (2003).

2231 538 U.S. at 736. Statutory classifications that distinguish between males

and females are subject to heightened scrutiny, Craig v. Boren, 429 U.S. 190, 197–

199 (1976), so they must be substantially related to the achievement of important

governmental objectives, United States v. Virginia, 518 U.S. 515, 533 (1996).

2238 AMENDMENT 14—RIGHTS GUARANTEED
congruent and proportional response to the “state-sanctioned” gender stereotypes.

Nine years after Hibbs, the Court returned to the Family and

Medical Leave Act, this time to consider the Act’s “self care” (personal medical) leave provisions. There, in Coleman v. Court of Appeals of Md., a four-Justice plurality, joined by concurring Justice

Scalia, found the self care provisions too attenuated from the gender protective roots of the family care provisions to merit heightened consideration.2232 According to the plurality, the self care provisions were intended to ameliorate discrimination based on illness,

not sex. The plurality observed that paid sick leave and disability

protection were almost universally available to state employees without intended or incidental gender bias. The addition of unpaid self

care leave to this state benefit might help some women suffering

pregnancy related illness, but the establishment of a broad self care

leave program under the FMLA was not a proportional or congruent remedy to protect any constitutionally based right under the

circumstances.2233

The Court in Tennessee v. Lane 2234 held that Congress could authorize damage suits against a state for failing to provide disabled

persons physical access to its courts. Title II of the Americans with

Disabilities Act provides that no qualified person shall be excluded

or denied the benefits of a public program by reason of a disability,2235 but since disability is not a suspect class, the application of

Title II against states would seem questionable under the reasoning of Garrett.

2236 Here, however, the Court evaluated the case as a

limit on access to court proceedings, which, in some instances, has

been held to be a fundamental right subject to heightened scrutiny

under the Due Process Clause.2237

Reviewing the legislative history of the ADA, the Court found

that Title II, as applied, was a congruent and proportional response to a Congressional finding of “a backdrop of pervasive un2232 566 U.S. ___, No. 10–1016, slip op. (2012) (male state employee denied unpaid sick leave).

2233 Justice Ginsburg, writing for herself and three others, extensively reviewed

the historical and legislative record and concluded that the family care and the self

care provisions were of the same cloth. Both provisions grew out of concern for discrimination against pregnant workers, and, the FMLA’s leave provisions were not,

in the dissent’s opinion, susceptible to being rent into separate pieces for analytical

purposes.

2234 541 U.S. 509 (2004).

2235 42 USCS § 12132.

2236 531 U.S. 356 (2001).

2237 See, e.g., Faretta v. California, 422 U.S. 806, 819, n.15 (1975) (a criminal

defendant has a right to be present at all stages of a trial where his absence might

frustrate the fairness of the proceedings).

AMENDMENT 14—RIGHTS GUARANTEED 2239
equal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights.” 2238

However, as Justice Rehnquist pointed out in dissent, the deprivations the majority relied on were not limited to instances of imposing unconstitutional deprivations of court access to disabled persons.2239 Rather, in an indication of a more robust approach where

protection of fundamental rights is at issue, the majority also relied more broadly on a history of state limitations on the rights of

the disabled in areas such as marriage or voting, and on limitations of access to public services beyond the use of courts.2240

Congress’s authority under § 5 of the Fourteenth Amendment

to abrogate states’ Eleventh Amendment immunity is strongest when

a state’s conduct at issue in a case is alleged to have actually violated a constitutional right. In United States v. Georgia,

2241 a disabled state prison inmate who used a wheelchair for mobility alleged that his treatment by the State of Georgia and the conditions

of his confinement violated, among other things, Title II of the ADA

and the Eighth Amendment (as incorporated by the Fourteenth

Amendment). A unanimous Court found that, to the extent that the

prisoner’s claims under Title II for money damages were based on

conduct that independently violated the provisions of the Fourteenth Amendment, they could be applied against the state. In doing so, the Court declined to apply the congruent and proportional

response test, distinguishing the cases applying that standard (discussed above) as not generally involving allegations of direct constitutional violations.2242

2238 541 U.S. at 524.

2239 541 U.S. at 541–42 (Rehnquist, J., dissenting).

2240 541 U.S. at 524–25. Justice Rehnquist, in dissent, disputed the reliance of

the Congress on evidence of disability discrimination in the provision of services administered by local, not state, governments, as local entities do not enjoy the protections of sovereign immunity. Id. at 542–43. The majority, in response, noted that

local courts are generally treated as arms of the state for sovereign immunity purposes, Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977), and that

the action of non-state actors had previously been considered in such pre-Boerne cases

as South Carolina v. Katzenbach, 383 U.S. 301, 312–15 (1966).

2241 546 U.S. 151 (2006).

2242 “While the Members of this Court have disagreed regarding the scope of

Congress’s ‘prophylactic’ enforcement powers under § 5 of the Fourteenth Amendment, no one doubts that § 5 grants Congress the power to ‘enforce . . . the provisions’ of the Amendment by creating private remedies against the States for actual

violations of those provisions.” 546 U.S. at 158 (citations omitted).

2240 AMENDMENT 14—RIGHTS GUARANTEED